Abbott to sue Biden administration over vaccine mandate for National Guard

Texas Gov. Greg AbbottGreg AbbottO'Rourke 'not interested' in campaign help from politicians outside Texas Gerrymandering is putting US in Mad Max territory On immigration, President Biden needs a re-set MORE (R) announced on Tuesday that he will sue the Biden administration to block the Pentagon’s vaccine mandate for his state’s National Guard.

In a letter to Maj. Gen. Tracy Norris, Adjutant General of the Texas Military Department, Abbott says he is suing because the federal government has put his state’s Guard members in a “difficult position.”

“As the commander-in-chief of Texas’s militia, I have issued a straightforward order to every member of the Texas National Guard within my chain of command: Do not punish any guardsman for choosing not to receive a COVID-19 vaccine,” the governor wrote.

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“Although my order has been in effect for months now, President BidenJoe BidenDeputy AG: DOJ investigating fake Trump electors On The Money — Vaccine-or-test mandate for businesses nixed Warner tests positive for breakthrough COVID-19 case MORE has muddied the waters with a vaccine mandate from the U.S. Department of Defense,” he said.

The lawsuit comes weeks after Abbott formally told Defense Secretary Lloyd Austin that he would not impose the vaccine requirement for his state’s Guard members.  

Austin mandated vaccinations for the military in August, but each service is responsible for implementing the mandate.

Air National Guard members had until Dec. 31 to comply after the Air Force extended an earlier deadline. Meanwhile, Army National Guard members have until June 30 to be vaccinated. 

In October, Abbott ordered Norris not to punish any Guard members who choose not to receive the vaccine.

Abbott’s lawsuit also comes just a week after Oklahoma Gov. Kevin Stitt (R) lost a similar case to block the Pentagon’s vaccine mandate for National Guard members. 

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Stitt was the first GOP governor to sue the Pentagon over the mandate in December, after Austin denied his request to exempt his state’s Guard members from the mandate. U.S. District Judge Stephen Friot said in a ruling last Tuesday that the claims made in that suit were “without merit.”

Meanwhile, five other GOP governors have urged Austin to exempt the National Guard from the vaccine mandate.

There are two federal statutes that dictate control of the National Guard. Abbott’s letter asserts that he holds authority over the Guard under Title 32 of the US Code, which stipulates that the Guard is under state control unless they are called up for federal duty. 

Under Title 10, the president can mobilize the Guard, placing them under federal authority. But the Austin has said that Guard members are federally funded when they receive training or education, so they must follow the mandate regardless.

“The federal courts have the power to decide whether President Biden violates the U.S. Constitution’s Second Militia Clause by undermining my commander-in-chief power, instead of federalizing Texas’s guardsmen to use his own commander-in-chief power,” Abbott wrote.

“Win or lose, President Biden must be held accountable for his unconscionable willingness to hollow out the Texas National Guard,” he continued.

The Hill has reached out to the Pentagon for comment.