Vaccine Mandate Stands for Oklahoma National Guard, Says Judge

Oklahoma Gov. Kevin Stitt lost a legal battle to exempt the state’s National Guard soldiers and Air National Guard airmen from the military’s COVID-19 vaccine mandate.

Federal Judge Stephen Friot denied Oklahoma’s request for an injunction against the Pentagon’s mandate on Tuesday, Dec. 28. “The court is required to decide this case on the basis of federal law, not common sense,” Friot wrote in his order. “But, either way, the result would be the same. The claims asserted by the Governor and his co-plaintiffs are without merit.”

Lawyers for the state of Oklahoma filed the case against President Joe Biden, the Pentagon, and a slew of federal agencies in the US District Court for the Western District of Oklahoma on Dec. 2, which was the deadline for members of the Oklahoma Air National Guard to receive the vaccine before facing possible administrative separation. Members of the Oklahoma Army National Guard have until June 2022.

Oklahoma’s suit revolves around the status of Gov. Kevin Stitt as the Commander in Chief of the National Guard and Air National Guard while those units are on state orders under Title 32 of the US Code. Oklahoma Attorney General John O’Connor claimed that Biden has no authority over members of the Oklahoma Air National Guard unless they are under federal orders, a status known as Title 10.

The US government responded that the difference did not apply to an issue that affected readiness to immediately deploy on federal orders, and Judge Friot agreed.

“However wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state […] 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, 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,” Friot wrote.

The lawsuit was not Stitt’s first attempt at circumventing the vaccine mandate. After originally writing a letter to Secretary of Defense Lloyd Austin asking for Oklahoma troops to be exempt, he fired the state’s pro-vaccine adjutant general, Maj. Gen Michael Thompson, replacing him with Brig. Gen. Thomas Mancino. Mancino then released a statement saying the National Guard in Oklahoma would not need to comply with the mandate when on Title 32 orders.

Mancino himself later acknowledged, however, that he had “no such power” to allow the troops to evade the mandate to face consequences if and when the troops were placed under Title 10 authority. His declaration was “a limited safe haven,” Mancino said in a memorandum to the National Guard.

Austin, in turn, denied Stitt’s written request and instead released a memo threatening to suspend paychecks for guardsmen who are unvaccinated at the deadline. “No Department of Defense funding may be allocated for payment of duties performed under title 32 for members of the National Guard who do not comply with Department of Defense COVID-19 vaccination requirements,” the memorandum stated.

Stitt responded with the state’s lawsuit.

O’Connor’s office expressed their disappointment with the court’s decision. “We will not be surprised if the President’s vaccine mandate actually reduces the nation’s military readiness instead of promoting it,” the attorney general’s office said in a statement. “We are analyzing the State’s response to this decision.”

The failure of the lawsuit to win even a preliminary injunction against the mandate — a temporary step early in a lawsuit that requires a much lower bar for evidence than Oklahoma would face in a full trial — may put a damper on the hopes of governors of six other states who have followed Oklahoma’s lead. The governors of Wyoming, Alaska, Iowa, Mississippi, and Nebraska co-signed a letter to Austin on Dec. 14, with a similar message as Stitt’s, claiming that vaccines and mandates were “beyond your constitutional and statutory authority.”

Texas Gov. Greg Abbott sent a separate letter to Austin two days later, saying he had ordered the state’s adjutant general to not enforce the mandate. “If unvaccinated guardsmen suffer any adverse consequences within the State of Texas, they will have only President Biden and his Administration to blame,” Abbott wrote.

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