Secretary of Defense Lloyd Austin issued a memo on Aug. 24 directing the secretaries of the military departments to immediately begin full coronavirus vaccination of all members of the armed forces. The memorandum delegated them the duty to implement the policy for their respective branches of service. And the secretary of the Army subsequently issued a policy memorandum requiring Army National Guard units to be fully vaccinated by June 30, 2022.
Vaccination requirements, even unusual vaccination requirements, have a long history in the military. Less than a year into the American Revolution, George Washington ordered the inoculation of his forces against smallpox. At the outset of World War II, a massive federal push led to the development of novel vaccines for more than a third of vaccine-preventable diseases, including the first influenza vaccine, which was routinely administered throughout the war, along with inoculations for smallpox, yellow fever, scarlet fever, diphtheria, plague and typhus. In the 1990s, the Clinton administration mandated vaccination against anthrax to ensure military readiness in case of what was presciently believed to be the most likely form of biological attack. And after the Sept. 11 attacks, President George W. Bush mandated vaccination against smallpox for similar reasons.
Vaccine hesitancy within the ranks also has a long history, and so the reticence expressed by some service members to the coronavirus vaccine is hardly surprising or unusual. Service members have sought to refuse inoculations on religious grounds. In the late 1990s, scores of service members refused inoculation against anthrax because, in the protean days of the internet, circulating conspiracy theories suggested that the anthrax vaccine was not actually approved by the FDA, was laced with squalene, and was responsible for the autoimmune diseases associated with Gulf War Syndrome. What is unusual now is that ostensibly responsible political leaders have encouraged service members to disobey vaccine requirements.
Recently, the governor of Oklahoma asserted the right to exempt the National Guard of his state from receiving the coronavirus vaccine altogether. Governor Kevin Stitt has made a partisan cause of opposing the Biden administration’s anti-coronavirus efforts, including a ban on mask mandates within the state. In September, Stitt proclaimed on Twitter, “As long as I am governor there will be no vaccine mandates in Oklahoma.” On Nov. 1, he attempted to make good on that promise, when he sent a letter to Secretary Austin asking that the Department of Defense suspend the coronavirus vaccination requirement for the Oklahoma National Guard, asserting that the mandate “violates the personal freedoms of many Oklahomans.” Stitt claimed that “10% of Oklahoma’s overall force” have not and do not plan on receiving the coronavirus vaccine, and argued that “[i]t is irresponsible for the federal government to place mandatory vaccine obligations on Oklahoma national guardsmen which could potentially limit the number of individuals that [he] can call upon to assist the state during an emergency.”
On Nov. 10, Stitt abruptly relieved the state’s adjutant general (the overall commander of the state’s National Guard) from duty and replaced him with Brig. Gen. Thomas Mancino. The reason for the abrupt replacement was not publicly disclosed, but it appears related to Stitt’s decision to buck the Defense Department on the coronavirus vaccine, because the day after his appointment, Brig. Gen. Mancino issued a memorandum purporting to exempt Oklahoma National Guard members from the department’s coronavirus vaccine mandate altogether.
When active-duty service members have refused vaccine requirements in the past, they uniformly have been court-martialed, dropped from the rolls, or otherwise sanctioned by the chain of command for disobeying lawful orders. The law of military obedience is—outside the context of flagrantly unlawful orders, such as to perpetrate war crimes—strict and unforgiving.
Given the unique federalism issues governing the National Guard, however, the current showdown with Oklahoma raises two unique legal questions. First, does Governor Stitt have the legal power to exempt the Oklahoma National Guard from Defense Department vaccine mandates? Second, when push comes to shove, is there anything the Defense Department can do to enforce the mandate in the face of a state’s intransigence?
The answer to the first question is no; and it is not even a close call. The National Guard is the modern umbrella term for the military entity that was called the “militia” at the time of the nation’s founding. Tracing their origins to pre-Revolutionary England, militia comprised citizen soldiers, who by law were often required to keep arms in their homes, belong to a local group that more resembled a rotary club than an army, and were ready to be called up to bear arms in times of public need. This made militia members distinct from the full-time military professionals of the regular army. And they both operated and were understood to operate under local regulations dictated by local needs for which local politicians were accountable.
In two of its most controversial and hotly contested provisions at the time of ratification, the Constitution qualified the traditional breadth of this local control in what are collectively known as the Militia Clauses. The Militia Clauses give Congress both the power to “provide for the calling forth” of the militia (meaning ordering of the militia to serve under the command of the federal government) and to “provide for organizing, arming, and disciplining, the Militia.” The only powers that states retain over the militia that are constitutionally protected from congressional interference are the powers to appoint militia officers and to conduct training in conformity with congressional regulations.
In the early years of the Republic, Congress used its powers under the Militia Clauses sparingly. With the Militia Act of 1792, Congress delegated the power to call up the militia to the president, in what was the predecessor to the modern Insurrection Acts, and set forth very general standards under which states were to maintain their militia, including a mandate that all men between 18 and 45 were to enroll in a local militia and keep standardized arms.
By and large, lax congressional regulation left the militia multifarious in their organization and their state of readiness across the states until the Militia Act of 1903 conditioned federal funding on the states’ agreement to standardize their National Guard units. This began a period of increasing federal regulation, which culminated in the so-called National Guard Bill of 1933, which, as the Supreme Court described it, required members of the National Guard to “keep three hats in their closets—a civilian hat, a state militia hat, and an army hat.” Congress made service in a state’s National Guard contingent on that service member’s induction into a new reserve component of the national Army, known as the Army National Guard of the United States (when the Air Force separated from the Army as an independent service branch in the late 1940s, Congress created a parallel Air National Guard system).
Since 1933, therefore, federal guidelines have governed “the organization, funding, and operation of the National Guard.” Even when not federalized, members of the National Guard are part of an ever-present federal mission “to maintain well-trained, well-equipped units available for prompt mobilization during war and provide assistance during national emergencies.” Title 32, which regulates the National Guard, specifies that National Guard members must meet the same training and readiness requirements as the Army. And a host of National Guard Regulations (NGRs) issued by the Defense Department’s National Guard Bureau govern the National Guard’s organization, standards and routine operations.
When it comes to vaccinations, the regulation establishing the Army National Guard Preventive Medicine Program requires that the National Guard will “[a]dhere to federal, state, and host nation laws, regulations, and guidance governing during peacetime in non-deployed situations and during training exercises” in order to “enhance and sustain optimal levels of the health and fitness of all [National Guard] personnel.” The secretary mandated the coronavirus vaccine pursuant to the Defense Department regulation governing inoculation requirements, which was updated and reissued by the Trump administration in 2019. And the secretary of the Army’s directive to the nation’s National Guard units requiring vaccination was authorized under regulations promulgated by the secretary of defense, granting the secretaries of the Army and Air Force authority to supervise and regulate their respective members of the National Guard. The legality of the mandate to all members of the National Guard, Oklahoma included, would therefore appear straightforward.
Against all this, Oklahoma has staked out a novel legal position. In his Nov. 11 memorandum, Mancino instructed the members of the Oklahoma National Guard:
If you are not mobilized on Title 10 orders, the only entity that can give you a “lawful” order—that is an order backed by the authority of law—is the Governor and his designated State chain of command. That “law” is Title 32 U.S. code. This is easily seen by the fact that the UCMJ does not apply to you in Title 32 status. Instead, you are governed by the Oklahoma Code of Military Justice.
We reached out to the Oklahoma National Guard for any explanatory memoranda supporting this contention and were referred to Governor Stitt’s chief of communications, Charlie Hannema. Hannema did not respond to multiple attempts to reach him, but Hannema previously told Task & Purpose that under Title 32, the National Guard falls under a state or territory’s governor unless those soldiers and airmen are activated for a federal mission, and that “[i]t is the governor’s position that as commander-in-chief, he is the one with the authority to enforce policies while on state duty.”
There is no good authority for this muscular conception of a state governor’s commander-in-chief power over the National Guard, under which a governor retains—in effect—the power to nullify federal regulations made pursuant to the Militia Clauses. Governors have made similar arguments for residual power over National Guard members of their respective states in the past and lost. In 1820, the Supreme Court had its first opportunity to opine on the relationship between state and federal regulations of the militia and held:
Congress has power to provide for organizing, arming, and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress.
While the court recognized that states retain some power to regulate the militia, as they would any other state agency, any state regulations are “subordinate nevertheless to the paramount law of the general government, operating upon the same subject.” Like the Supremacy Clause more generally, federal regulations of the militia supplant any residual commander-in-chief power a governor might retain. If a state governor issues an order contrary to federal law, that order is unlawful and subordinates follow it in violation of federal law at their peril.
Hence, Secretary Austin was on firm regulatory, statutory and constitutional ground when he denied Stitt’s request for a waiver on Nov. 29. The secretary correctly summarized the state of the law, saying that under:
the Presidential authority in title 32, U.S. Code, section 110, to prescribe regulations and issue orders necessary to organize, discipline, and govern the non-Federalized National Guard, all members of the Oklahoma Army and Air National Guard, regardless of duty status, must follow the directions of the Secretary of the Army and the Secretary of the Air Force, respectively, for specific COVID-19 vaccine compliance deadlines and requirements.
Assuming Governor Stitt and Brig. Gen. Mancino persist in not only permitting but also encouraging the members of the Oklahoma National Guard to defy the coronavirus vaccine mandate, they are not advancing a good-faith legal position on which they have any reasonable prospect of prevailing in court. Rather, they are advocating a kind of civil disobedience within the ranks. That much is plain from Mancino’s memorandum, which highlights—not any legal authority supporting Stitt’s breathless invocation of his commander-in-chief powers as governor—but the fact that National Guard members are not subject to being court-martialed under the Uniform Code of Military Justice (UCMJ) unless and until they are activated into federal service (typically described as being called up into their “Title 10” status). Members of the Oklahoma Guard can disobey the law all they want, in other words, because the military can’t prosecute them.
In one limited respect, Mancino is correct. There is no plausible threat of court-martial. The Defense Department would have to federalize the Oklahoma National Guard for training or a national mission to make them subject to the federal vaccine mandate and therefore to disciplinary action for refusal to obey a lawful order. As Eugene Fidell, military law professor at New York University Law School, has pointed out, forcing Oklahoma Guard members to comply by putting them all on federal orders would leave federal taxpayers footing a pretty significant bill.
What practical options does the Defense Department have to compel compliance? In his Nov. 29 letter to Stitt, Secretary Austin threatened that a Guard member’s refusal of the vaccine “may lead to a prohibition on the member’s participation in drills and training conducted under title 32 and jeopardize the member’s status in the National Guard.” And then in a memorandum issued the following day, Austin carried out the first part of his threat by mandating:
1) No Department of Defense funding will be allocated under title 32 for members of the National Guard who do not comply with Department of Defense COVID-19 vaccination requirements.
2) No credit or excused absence shall be afforded to members who do not participate in drills, training, or other duty due to failure to be fully vaccinated against COVID-19.
Given that federal mobilizations and training exercises are a significant source of both pride and money for members of the National Guard, these incentives may be enough to cajole compliance. If, however, they prove insufficient, perhaps because Guard members calculate that they can wait out the Biden administration or perhaps because Oklahoma partisan politics steels their nerve to disobey, the secretary still retains heavier tools.
For individual members of the Oklahoma Guard, a major point of pressure is the Defense Department’s “recognition” power. At the same time Congress created the federal reserve officer “hat” for Guard members, it also conditioned a service member’s continued membership in the state’s National Guard on their being federally “recognized.” This means that every appointment, enlistment or promotion a service member receives in their state’s National Guard is subject to a Defense Department veto. Under regulations promulgated by the secretary of defense, the secretaries of the Army and Air Force are given considerable discretion to supervise the conduct of the state’s Army and Air National Guard personnel, including making these recognition determinations and broad discretion in determining at what rank a member of the Guard should be allowed to retire.
In the case of Brig. Gen. Mancino, the Army could theoretically refuse to recognize his promotion or take similar personnel action given the role he has played in encouraging his subordinates to defy their orders. Such action would hardly be unprecedented. In one case from the late 1990s, an Air Force Reserve officer was involuntarily retired and effectively demoted for encouraging his subordinates to resist the anthrax vaccine mandate. The fact that Mancino was put into the job precisely because it appears his predecessor was unwilling to similarly “go rogue” certainly would support the Defense Department’s taking a closer look.
In fact, for all members of the National Guard, the secretaries of the Army and Air Force have the power to “inspect,” which means conduct a formal inquiry into whether Guard members “meet prescribed physical and other qualifications” of service. If the secretary concludes that a member fails to meet the prescribed fitness standards—for example, by refusing a mandatory inoculation—federal recognition of that member, officer or enlisted, can be withdrawn. The withdrawal of that recognition is significant because, by law, the Defense Department’s revocation of an officer’s or an enlisted member’s federal recognition automatically discharges the individual from both the state’s National Guard and any position held in the federal Army or Air National Guard of the United States.
In other words, in the face of the continued refusal to abide by the coronavirus vaccine mandate, the Defense Department retains the power to expel holdouts not just from federal service but also from positions in the state’s National Guard. While the process for doing so is not free from administrative cost, it is far less cumbersome than what is required to court-martial active-duty personnel under the UCMJ.
For enlisted members of the Guard, the separation process would be carried out in accordance with Army regulation AR 135-175 as directed by NGR 600-200. The member would be entitled to pre-separation counseling, conducted by the member’s unit commander, to discover if rehabilitative efforts could solve the issue before separation is initiated. But if not, a member with less than six years in the service could be ordered separated under a General Discharge with little more than the signing of some forms.
For enlisted members with more than six years of service, the member would have the right to demand an administrative separation board. Such a board would also be required if the Defense Department sought to impose an Other Than Honorable Discharge, which could affect the member’s entitlement to veteran’s benefits. Such boards are commonly used for minor military infractions and generally entitle the member being involuntarily separated to a hearing in which they can argue for why they should be retained or at the very least, why their discharge should be under honorable conditions. When it comes to the conditions of an enlisted members’ separation for refusing the coronavirus vaccine, there would be little practical value in pursuing anything more punitive than a General Discharge (other than to perhaps make an example out of a particular individual), insofar as the department could simply mark the member’s discharge paperwork with a derogatory reenlistment code that would effectively bar any future military service.
For commissioned and warrant officers, the withdrawal of federal recognition is governed by NGR 635-101, which requires a board of officers to be convened (a so-called recognition board) in which the officer concerned is afforded the opportunity to appear in person to present a defense. The officer can also spare everyone the trouble by resigning in lieu of contesting the proceedings. As a practical matter, such recognition boards are procedurally similar to administrative separation boards. And in either case, the Guard members would quickly discover that—Brig. Gen. Mancino’s assurances notwithstanding—vaccine mandates are very much “lawful” and the “law.” And they would likely find themselves in the same position as the many service members who have previously tried, and uniformly failed, to challenge vaccine mandates in the past: swiftly and permanently returned to civilian life.
To be sure, the express terms of the relevant statutes notwithstanding, there is an outstanding legal question respecting whether the withdrawal of federal recognition can truly compel a state to expel a member of its National Guard. In litigation surrounding Don’t Ask Don’t Tell, at least one California district court concluded that Title 32’s automatic separation provisions, despite their text, operate only as a condition of federal funding. In other words, because a state’s receipt of National Guard funding is made contingent on its compliance with Title 32, a state such as Oklahoma could very well continue to employ a service member in its National Guard despite the member’s loss of federal recognition. That state would simply hazard a potential loss of funding if it does so. And there is at least an argument that this tie to Congress’ spending power is constitutionally compelled insofar as the Militia Clauses’ reservation to states of the exclusive power to appoint the offices could be construed to entail the exclusive power to remove.
But that funding condition simply highlights the heaviest hammer that the Defense Department can swing if the leadership of the Oklahoma National Guard continues their campaign of civil disobedience against the coronavirus vaccine mandate. Under Title 32, if a state fails to comply with a lawful federal regulation, “the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” In the case of Oklahoma, nearly 80 percent of its National Guard budget for fiscal year 2021 was covered by federal funding. Given that 90 percent of Oklahoma’s National Guard have either received or intend to receive the vaccine, it would be a remarkable act of political self-mutilation for the governor of a state whose death toll already ranks ninth in the nation (right behind Florida, Arkansas and New York) to hazard such a cost for what appear to be partisan reasons.