Oklahoma officials say they are weighing their options after a federal judge rejected their challenge to the Pentagon’s COVID-19 vaccine requirement for National Guard troops, the first major decision in a high-stakes legal battle Republican governors are waging against the Biden administration’s military mandate.
The ruling late Tuesday underscored what analysts say is likely an uphill legal battle facing Oklahoma and at least five other states as they argue that Guard troops who object the vaccine on personal, religious or moral grounds should be exempt from the mandate. But the federal court’s decision almost surely won’t be the final word.
With the Biden administration’s June 30 vaccination deadline for Army National Guard troops still six months away, the fight between GOP-led states and the Pentagon is expected to drag on well into 2022. The military’s vaccine policy and the legal challenges it has sparked are likely also to be major political issues in next year’s midterm election campaigns, with Republicans appealing to swing voters skeptical of the administration’s coronavirus mandates.
Republicans already are using Defense Secretary Lloyd Austin’s vaccination policy to hit Democrats on national security. In a statement following Tuesday night’s ruling, Oklahoma Attorney General John O’Connor suggested his state is weighing an appeal while previewing one of the GOP’s midterm election arguments.
“The state of Oklahoma is proud of the protection and service our National Guard, active duty and reserve military members, and all federal employees provide to all Oklahomans and to our nation. We thank them for their service. We filed this lawsuit to support these Oklahomans who object to the president’s vaccine mandate,” Mr. O’Connor’s office said in a statement.
“We are disappointed with this decision. We expect the Biden administration to review in good faith all exemptions and religious accommodations requested by our fellow Oklahomans,” the statement said. “We will not be surprised if the president’s vaccine mandate actually reduces the nation’s military readiness instead of promoting it. We are analyzing the state’s response to this decision.”
The Republican governors of Alaska, Iowa, Mississippi, Nebraska and Wyoming made a similar point in a recent letter to Mr. Austin, arguing that kicking out capable, unvaccinated men and women will harm the nation’s military. Military services have begun to force out unvaccinated active-duty service members. Similar moves are expected for unvaccinated Guard personnel.
The GOP governors also contend that Mr. Austin lacks authority over Guard troops until they are activated for federal duty.
But if Tuesday’s ruling from U.S. District Judge Stephen Friot is any indication, courts will be reluctant to accept any of those arguments.
In his opinion, Judge Friot, who was appointed by President George W. Bush, said the claims made by Mr. O’Connor and Oklahoma Gov. Kevin Stitt, a Republican, were without merit. He ruled that Mr. Austin was justified in requiring that all National Guard troops get vaccinated by their service’s respective deadline.
“The vaccine mandate to which the governor objects is the one — in addition to the nine that already apply to all service members — intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought,” Judge Friot wrote. “The court is required to decide the case on the basis of federal law, not common sense. But, either way, the result would be the same.”
Mr. Austin, meanwhile, has said that vaccinations are a matter of military readiness. His policy states that any Guard members who refuse the vaccine by the deadline won’t be paid.
“As I’ve said before, vaccination of the force will save lives and is essential to our readiness,” the defense secretary said in a November memo.
Legal scholars generally agree that governors will have a tough time persuading courts to exempt Guard forces from the mandate for any reason.
Indeed, Judge Friot said military personnel already have agreed to a host of other vaccinations when they signed up to serve.
“The COVID vaccination mandate should be understood against the backdrop of other military immunization mandates — which date back as far as Gen. George Washington’s mandate that troops in the Continental Army be inoculated against smallpox. Nine vaccinations (now ten, with the COVID vaccination mandate) are required for all service members,” the judge wrote.
The vaccination deadline for Air National Guard members was Dec. 2. Army National Guard forces have until June 30.
Each service’s vaccination deadline for active-duty troops has already passed. So far, none of the services has approved any religious exemptions, despite requests from thousands of troops across the military.
