Vaccine mandate poses major test for Pentagon chief

Vaccine mandate poses major test for Pentagon chief
© Getty Images

Defense Secretary Lloyd AustinLloyd AustinUS extends security pact with Georgia for six years Overnight Defense & National Security — Presented by Raytheon Technologies — Nation mourns Colin Powell Powell death leads to bipartisan outpouring of grief MORE’s decision to require the COVID-19 vaccine for all military personnel is shaping up to be a major test of his leadership that risks souring his relationship with the rank and file.

The move, which would add the coronavirus vaccine to the Pentagon’s list of required shots by mid-September and apply to the nation's roughly 2 million service members, already has Austin battling calls from conservatives to keep the immunization voluntary. 

And a vaccine mandate before the shot gets full approval by the Food and Drug Administration (FDA) is likely to create a slew of legal fights from troops who have thus far refused to get vaccinated. 

ADVERTISEMENT

“I think it is going to engender a lot of unnecessary backlash,” said Mark Cancian, a former defense specialist in the government who’s now a senior adviser at the Center for Strategic and International Studies. 

“There are going to be court cases. ... It’ll be a mess.” 

It is not uncommon for the Pentagon to require certain inoculations for its service members when they enter the military or before they deploy overseas. The military already makes mandatory 17 shots, including for measles, mumps, diphtheria, hepatitis, smallpox and the flu.

Austin, a former four-star general who retired in 2016 after serving in the Army for 41 years, was mandated to receive immunizations during his military career.

“Members of the military understand when you sign up for the military, that there are requirements laid upon you,” Pentagon press secretary John Kirby told reporters on Monday. “Some of those requirements include being healthy and fit and ready to serve. Some of that depends on our requirement to make sure you're fit and healthy, through inoculation and vaccination.”

The Pentagon has not previously required the COVID-19 vaccine for its personnel as it remains under FDA emergency use authorization. The department instead has been strongly encouraging troops to get the shot.

A majority of active-duty service members have heeded that advice, with 73 percent of them receiving at least one dose, and roughly 62 percent fully vaccinated.

But that figure is closer to only 50 percent when you add in personnel from the guard and reserve forces, with a little more than 1 million service members fully vaccinated and another 240,000 partially immunized, according to Pentagon data updated on Wednesday.

Polls consistently show that among U.S. adults overall, reluctance or outright opposition to the vaccine is largely concentrated among Republicans. In the military, anti-vaccination misinformation is playing a big role in the high number of vaccine holdouts in the military, according to some experts.

The pending mandate — expected to come by Sept. 15 or sooner through either a presidential waiver or when it receives final approval from FDA — will mean the hundreds of thousands of military personnel who have thus far held out could face punishment if they refuse to get vaccinated.

“If it’s treated like any lawful order, there could be administrative and disciplinary repercussions for failing to obey the order,” Kirby said Tuesday.

That doesn’t sit well with a number of Republican lawmakers, some of whom have sparred with Austin over social issues in the past.

Rep. Mark GreenMark GreenCities become pawns in redistricting game GOP senators seek to block dishonorable discharges for unvaccinated troops A quick reaction force in India could prevent the worst of Taliban rule in Afghanistan MORE (R-Tenn.), an Army veteran and member of the House Armed Services Committee, argued on Twitter this week that service members who do not wish to receive the vaccine “cannot be required to do so until the approval process is completed. Any action to require it is illegal.”

Green, who on Friday led a letter signed by 16 House Republicans urging the Pentagon chief not to issue a mandate, extolled the vaccine as “safe and effective,” but said any mandate ahead of FDA approval “is an unprecedented violation of federal law.”

Rep. Thomas MassieThomas Harold MassieEighth House GOP lawmaker issued 0 fine for not wearing mask on House floor Reps. Greene, Roy fined for not wearing masks on House floor Sixth House GOP lawmaker issued K metal detector fine MORE (R-Ky.), meanwhile, has introduced a bill meant to prohibit a COVID-19 vaccine mandate for troops. Among the bill’s 30 Republican co-sponsors are Green and Rep. Matt GaetzMatthew (Matt) GaetzJudge grants another sentencing delay to Gaetz associate, but says it will be his last Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups Lawmakers question whether Amazon misled Congress MORE (Fla.), who in June sparred with Austin over critical race theory being taught at military institutions.

Massie — who in May was issued a $500 fine for refusing to wear a mask on the House floor — last week tweeted that he had been contacted by service members “to express they will leave the military if forced to take the COVID vaccine.”

And Rep. Clay HigginsGlen (Clay) Clay HigginsRep. Tim Ryan becomes latest COVID-19 breakthrough case in Congress NY Democrat tests positive for COVID-19 in latest House breakthrough case Florida Democrat becomes latest breakthrough COVID-19 case in House MORE (R-La.), sent Austin a letter on Monday threatening a legal and “Congressional response” if the vaccine is mandated.

“The current reported plan to force vaccinations on military personnel prior to FDA approval will rightfully bring forth a strong Article III challenge on many fronts,” Higgins wrote.

ADVERTISEMENT

If Austin seeks to mandate the COVID-19 vaccine before FDA approval, he must request a waiver from President BidenJoe BidenJan. 6 panel lays out criminal contempt case against Bannon Overnight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed Two House Democrats to retire ahead of challenging midterms MORE. The Pentagon chief has already put the Defense Department on notice that he may go that route should infection rates rise even faster due to the highly contagious delta variant.

“I will not hesitate to act sooner or recommend a different course to the President if l feel the need to do so,” Austin wrote in his Monday memo announcing the coming mandate.

But Cancian said such a route is “going to be a political problem for the secretary.”

“They should use their tools for persuasion first and use those aggressively” to incentivize troops to get the shot, including limiting travel and activities such as gym usage for those who decline to get vaccinated. 

“When all of those avenues are exhausted then they can make it mandatory. You want to make that group that refuses to get vaccinated as small as possible so that when you take actions it’s minor and doesn’t get to become as big a thing.”

That kind of pressure could be alleviated if Austin waits until full FDA approval, a designation that would put the Pentagon on more solid legal ground in requiring the vaccine.

ADVERTISEMENT

It also would help the Defense Department avoid the pitfalls that ensued the last time the military required a shot under emergency-use authorization, which happened in 1998 with the anthrax vaccine.

The Pentagon became entangled in several court battles over the shot, which did not receive full FDA approval until 2004 and has since only been given on a limited basis to troops deploying to high-risk locations.

Details on what the new policy will mean for service members are still being worked out, and Austin is expected to reveal them in an upcoming order.

Other Pentagon personnel, including civilians and contractors, will also receive information in the coming weeks on the requirements and any restrictions that may result if they don't get the shot.

Because the specifics are still being finalized, it's unclear how much the Pentagon's mandate will differ from state-level mandates like California's, where government employees are required to be vaccinated or face weekly testing. That mandate applies to the California Army and Air National Guard as well as the California State Guard.

A military-wide order, however, is unlikely to allow much wiggle room for those who don't want the shot.

Troops with valid health conditions might receive an exemption to the mandate, along with those with religious beliefs that prohibit the use of vaccines, according to Kirby.

Any punishment for service members who refuse to get vaccinated will likely be handled at the command level, he added.