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Gov. Abbott sues Biden administration over vaccine mandate for service members

Texas Governor Greg Abbott speaks to the media about security on the Mexico-U.S. border after a briefing with Texas National Guard troops in Weslaco
Texas Governor Greg Abbott speaks to the media about security on the Mexico-U.S. border after a briefing with Texas National Guard troops at Sergeant Tomas Garces Texas Army National Guard Armory in Weslaco, Texas, U.S., April 12, 2018.

Texas Governor Greg Abbott said Tuesday he is suing the federal government over the Defense Department’s vaccine mandate for military service members, saying the requirement interferes with his authority over the Texas National Guard.

Abbott accused the Biden administration of violating the Second Militia clause of the Constitution and undermining his commander-in-chief power.

In a letter addressing Texas adjutant general Tracy Norris, Abbott said the Defense Department can’t order troops to get the vaccine unless they are deployed by the federal government. If not, he argued, they are under the control of the governor.

“Unless President Biden federalizes the Texas National Guard in accordance with Title 10 of the U.S. Code, he is not your commander-in-chief under our federal or state Constitutions,” Abbott wrote. “And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine.”

According to court documents filed in the U.S. District Court for the Eastern District of Texas, the case “seeks protection from the federal government’s unconstitutional action to force Texas, through its governor, to submit to federal orders and impose federally dictated disciplinary action on its National Guardsmen.”

The lawsuit states that it’s not taking a pro- or anti- vaccine stance. It argues the vaccine mandate will reduce the number of Guard forces in Texas and harm the state's ability to respond in an emergency.

Oklahoma's Governor Kevin Stitt filed a similar lawsuit but a federal judge denied his request for an injunction against the vaccine mandate for Guard troops.

The Military Desk at Texas Public Radio is made possible in part by North Park Lincoln and Rise Recovery.

National Guard units are under the dual control of the state governments and the federal government. The Guard's responsibilities can fall into several categories, including State Active Duty (SAD), Full-Time National Guard Duty (Title 32) and Active Duty (Title 10). Though State Active Duty, Title 32, and Title 10 represent different roles, they provide capabilities that support one another.

In November, Defense Secretary Lloyd Austin announced that unvaccinated National Guard members would be barred from drills and training needed to maintain their guard status, meaning loss of pay, retirement and other federal benefits.

The Pentagon has said it has the right to set medical readiness requirements for all service members, to include vaccines. Austin has also pointed out that Guard members receive federal funding whenever they train, and thus must follow the vaccine mandate.

On Tuesday, a federal judge in Texas ruled that the Navy cannot discipline 35 sailors who have opposed the vaccine mandate in court. He said that, by denying all religious exemption requests, the Navy violated the sailors’ rights under the First Amendment and the Religious Freedom Restoration Act.

Gov. Abbott faces a tough primary challenge in his 2022 reelection bid, and has been accused of politicizing the Texas National Guard with his state-level border enforcement initiative, called Operation Lone Star.

Less than a week ago, Abbott requested federal aid to fight the surging coronavirus outbreak in the state, including asking for testing sites and medical personnel.

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Carson Frame can be reached carson@tpr.org and on Twitter at @carson_frame