Vaccine Mandate for National Guard

Jordan Williams at The Hill:

An Oklahoma federal judge on Tuesday denied an attempt from the state to block the Department of Defense’s coronavirus vaccine mandate for National Guard members.

In a 29-page ruling, U.S. District Judge Stephen Friot denied a motion from Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor to preliminarily enjoin the mandate, saying the plaintiffs’ claims were without merit.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same,” Friot wrote. “The claims asserted by the Governor and his co-plaintiffs are without merit.”

From the ruling:

The constitutional allocation of responsibility for Guard matters has been fleshed out by Congress. The beginning point, understandably relied upon by the defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” In turn, the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary of the Air Force) are empowered to “prescribe such regulations as the Secretary considers necessary to carry out provisions of law relating to the reserve components under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).

Apropos of the constitutional grant of power to Congress to provide for “organizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline, including training, of the Army National Guard shall conform to that of the Army. The discipline, including training, of the Air National Guard shall conform to that of the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards, the President is empowered to cut off its funding: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal standards governing the National Guard to be too tight a fit, the state is free to establish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma has not done so.

The upshot of all this is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, Case 5:21-cv-01136-F Document 41 Filed 12/28/21 Page 19 of 29 20 to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions

Survey of Military Families

From Blue Star Families:

Blue Star Families’ annual Military Family Lifestyle Survey (aMFLS) has been providing a comprehensive understanding of the experiences and challenges encountered by military families since 2009. It offers crucial insight and data to help inform national leaders, local communities, and philanthropic actors—functions that are even more important as decision makers assess how to support military and veteran families while the nation recovers from a global pandemic. Blue Star Families conducted its 11th annual Military Family Lifestyle Survey from September to October 2020. Capturing experiences of nearly 11,000 respondents worldwide, and generating millions of data points, it remains the largest and most comprehensive survey of active-duty, National Guard, and Reserve service members, veterans, and their families.

SUPPORTING MILITARY FAMILIES STRENGTHENS NATIONAL SECURITY & LOCAL COMMUNITIES

The tumultuous events of 2020 intensified some pre-existing concerns common across military families including spouse employment, child care, military children’s education and time away. This year’s events underscored the importance of addressing these long-standing concerns, while also shining a spotlight on systemic problems. While the stormy year of 2020 created significant challenges, it also clarified issues and sparked changes, giving stakeholders interested in supporting military and veteran families a clearer view of the path to recovery.

The 2020 Military Family Lifestyle Survey Comprehensive Report examines these shifts and opportunities through the social determinants of health, exploring the five pillars that set the conditions for individual and family health and well-being: community and social context, health care access, education access and quality, neighborhood and the built environment, and economic stability.1


Executive Summary

Comprehensive Infographic

COVID-19 Impacts Infographic

Community and Social Context

Discrimination in the Military: Service members reported experiencing racial and gender discrimination, potentially impacting readiness and retention. Most did not report the most recent incident of discrimination. Also, a smaller proportion of those active-duty service member respondents who experienced military connected racial discrimination (43%) would recommend service than those who had not experienced discrimination (63%). Nearly one in 10 veterans of color reported racial discrimination was one of the reasons they left military service.

Unit Communication and Leadership: Fewer than half of service members reported feeling a sense of belonging to their unit. The number was even lower for female service members. Fewer than half agreed their command communicates well, and makes good decisions, but those who did agree reported significantly less stress.

Family Needs During Deployment: More than half of families who experienced a deployment or activation during COVID-19 experienced an unanticipated extension of their time apart. Service members and their family members reported their top needs during deployment include communication, opportunities to exercise, and access to medical care and mental health resources.

Voting: The overwhelming majority of military family respondents are registered to vote. Their decisions about where they registered were influenced by rules/regulations and their desire to maintain connection to specific communities. Military families are highly civically engaged.

National Guard/Reserve Service Members: Reserve and National Guard service members reported negative employment consequences during their career after an activation or deployment. Despite federal legal protections, nearly a quarter (23%) of National Guard and a third (34%) of Reserve service member respondents noted negative consequences with their civilian employers after returning from activation, such as losing promotion or training opportunities, involuntary reductions in hours or pay, or loss of employment.

Female Service Members and Veterans: Throughout the military life cycle, female service member respondents face greater challenges with balancing military and family life and report more negative experiences associated with service than their male counterparts. Service experiences are complex, and experiences of gender-based discrimination, harassment, assault, and general life challenges often occur alongside positive experiences of meaningful work and camaraderie with peers.

Health Care Access

Mental Health: Families still experience barriers to mental health care; 21% would like to receive care but do not currently. Nearly one-quarter (23%) of active-duty spouse respondents and 16% of active-duty service member respondents indicated having a current diagnosis for Generalized Anxiety Disorder. Despite increased use of telehealth services, active-duty family member respondents continue to report difficulty scheduling appointments, difficulty getting time off work for treatment, difficulty finding child care, and concerns about confidentiality.

Education Access and Quality

Relocation and Military Children with Special Needs: Active-duty families with children with special needs experience difficulty accessing educational and health care support services, particularly during relocation; these issues were exacerbated by COVID-19. The majority (78%) of active-duty family respondents with a child receiving special education services lost all or some of those educational support services during COVID-19 closures. Those transitioning to a new duty station encountered additional challenges; half of active-duty 6 family respondents with a child enrolled in special education, who PCSed since March 2020, reported they had trouble transferring their child(ren)’s IEP (51%) or 504 Plan (48%) to their new school.

Changing School Modality: Virtual education tripled in the last year, and more families are moving to homeschooling. Fifty-one percent of active-duty family respondents reported their oldest child participated in virtual education delivery in the 2020-2021 school year; 13% reported homeschooling. The shift to virtual education has impeded spouse employment; 36% of active-duty spouse respondents who are not working reported they were not working so they could homeschool their child(ren) or supervise virtual schooling.

Neighborhood and the Built Environment

Housing Choices: Most families pay well over the monthly out-of-pocket housing costs the Department of Defense projects they should be paying ($70-$158); of those active-duty families who reported out of pocket costs, 77% pay more than $200 out-of-pocket each month. When choosing housing, families prioritize proximity to base, family safety, a desirable school district, pet acceptance, and whether BAH will cover the costs. Financial stress increases with greater out-of-pocket housing costs.

Economic Stability

Child Care: Child care remains a top barrier to spouse employment, and it has intensified during COVID-19; it’s a greater challenge for families with kids with special needs. Lower income families have a harder time finding child care that works for their situation, but higher-income families still encounter challenges. Over half of service member respondents reported “permission to work remotely” would alleviate child care and schooling challenges.

Food Insecurity: While low food security is most prominent among junior enlisted family respondents (29%), higher ranking enlisted families also experience it. Fourteen percent of enlisted active-duty family respondents reported low or very low food security.

Spouse Employment: The spouse unemployment rate is higher in active-duty spouse respondents of color (27% vs. 17%) and recently relocated spouses (31% vs. 16%). Since March 2020, 42% of active-duty spouse respondents who had been working prior to the pandemic reported they had stopped working at some point during it, with layoffs and furloughs as the top reported cause. Most (68%) of those who stopped working remained unemployed at the time of survey fielding. Spouses identified remote/telework, transferring to a new location within the same company, and more flexibility from their service member’s command over their day-to-day job demands as preferred solutions.

The full report can be found here:
2020 Military Family Lifestyle Survey Comprehensive Report

The National Guard, Armed Forces, and Civil Disorder

Events in Ferguson raise the question of the role of the armed force in domestic unrest.  From Charles Doyle and Jennifer Elsea, "The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law," Congressional Research Service, August 16, 2012:

Section 333 of Title 10 permits the President to use the Armed Forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action “obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This section was enacted to implement the Fourteenth Amendment guarantee for equal protection. It does not require the request or even the permission of the governor of the affected state.

The provision lay dormant after the end of Reconstruction until 1957, when President Eisenhower ordered a battle group of the 101st Airborne Division into Little Rock 246 and federalized the entire Arkansas National Guard 247 in order to enforce a court order permitting nine black students to attend a previously white high school. The proclamation to disperse cited both Sections 332 and 333 of Title 10, U.S. Code.248 By federalizing the Arkansas Guard, the President effectively deprived the governor of forces that had several days previously been used to enforce the governor’s view of law and order.249

Presidents Kennedy and Johnson followed the Little Rock precedent to deal with resistance to court-ordered desegregation in a number of Southern states. In 1962, after the governor of Mississippi attempted to prevent black student James H. Meredith from registering at the University of Mississippi at Oxford, President Kennedy sought to enforce the court order  with federal marshals.250 When marshals met with resistance from state forces and later a  riotous mob, President Kennedy federalized the Mississippi National Guard and ordered active Army troops  already gathered in the area to take action.251 The President’s proclamation to disperse named the governor and other state officials as forming the unlawful assemblies obstructing the enforcement of the court order, citing as authority both Sections 332 and 333.252 President Kennedy followed a similar course of action to confront state resistance to court ordered desegregation in Alabama twice in 1963.253 President Johnson cited the same authority in 1965 to deploy troops, both regular Army and federalized National Guard, to Alabama to protect civil rights marchers as they made their way from Selma, AL, to Montgomery.254

• 246 PAUL SCHEIPS, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS, 1945-1992  (2005), at 40. 

• 247 Exec. Ord. No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

• 248 Proclamation No. 3204, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

• 249 Robert W. Coakley, Federal Use of Militia and the National Guard in Civil Disturbances, in BAYONETS IN THE  STREETS, 17, 30 (Robin Higham, ed. 1989). The governor had ordered the National Guard to enforce segregation by  preventing students from entering any high school that had previously been used exclusively for students of another  race, in defiance of a federal court order. See SCHEIPS, supra footnote 246, at 34.  

• 250 See SCHEIPS, supra footnote 246, at 86-87.  

• 251 Id. at 87-93; Exec. Ord. No. 11053, 27 Fed. Reg. 9693 (Oct. 2, 1962).  

• 252 Proclamation No. 3497, 27 Fed. Reg. 9681 (Oct. 2, 1962).  

• 253 Proclamation 3542, 28 Fed. Reg. 5705 (June 12, 1963); Exec. Order No. 11,111, 28 Fed. Reg. 5709 (June 12, 1963); Proclamation 3554, 28 Fed. Reg. 9861 (Sept. 11, 1963); Exec. Order 11,118, 28 Fed. Reg. 9863 (Sept. 11, 1963).  

• 254 Proclamation No. 3645, 30 Fed. Reg. 3739 (Mar. 20, 1965); Exec. Ord. No. 11,207, 30 Fed. Reg. 3743. The governor was enjoined by court order from interfering with the march, and he refused to call out the Alabama National Guard to protect the marchers on the grounds that he did not want the state to foot the bill. See SCHEIPS, supra footnote 246, at 162-63.