Judge denies Oklahoma governor’s request to block vaccine mandate for National Guard

U.S. Air Force Master Sgt. Candy Taylor, 633 Medical Group medical technician, prepares a COVID-19 Vaccination appointment card at Joint Base Langley Eustis, Virginia, January 8th, 2021. The appointment cards state the date and time the vaccine was administered; as well as the projected follow up-date. (U.S. Air Force photo by Staff Sgt. Ericha Fitzgerald)

Chris Casteel

The Oklahoman, Oklahoma City

Dec. 29—A judge on Tuesday rejected Oklahoma’s request to block the federal COVID-19 vaccine mandate for National Guard members, giving members of the Air National Guard just days to comply.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same. The claims asserted by the Governor and his co-plaintiffs are without merit,” the Oklahoma City federal judge said.

Senior U.S. District Judge Stephen P. Friot urged the Biden administration to give Guard members more time to comply before taking action that would directly or indirectly end their military careers.

Friot said it appears the non-compliant members “did not have the benefit of well-informed leadership at the highest level of the Oklahoma Guard.”

The judge pointed out in his order that the Guard and its members could be deployed with little or no notice anywhere in the world. “From day one of the military vaccine mandate, the Guard was included,” he said. “The Guard was included … because ‘to defend this Nation, we need a healthy and ready force.'”

He also said the vaccine mandate is intended to protect service members from a virus that already has killed more Americans than have been killed in action in all of the wars the United States has ever fought.

“The COVID vaccination mandate should be understood against the backdrop of other military immunization mandates — which date back as far as General George Washington’s mandate that troops in the Continental Army be inoculated against smallpox,” he said.

“The court would be hard-put to find that the public interest would be served by entry of an order prohibiting the implementation of a vaccine mandate which adds one FDA-approved vaccine to the list of nine that all service members are already required to take — that tenth vaccine being the one which has been shown to be remarkably effective in mitigating the effects of the pandemic which has affected millions of Americans, including thousands of service members.”

Air Force guidance issued earlier this month gives most Air National Guard members until Friday to start a vaccination regimen.

“Excluding members with pending or approved medical, religious or administrative exemption requests, ANG ( Air National Guard) members that have not initiated a vaccination regimen by 31 December 2021 may not participate in drills, training, or other duty conducted under Title 10 or Title 32 U.S.C, and those with a remaining Military Service Obligation will be involuntarily assigned to the Individual Ready Reserve (IRR),” the guidance states.

The guidance also lays out a process for those whose medical or religious exemption request was denied or who refuse to be vaccinated. Those who lose appeals to requests for exemptions and refuse to comply with the mandate will no longer be in the Guard.

Oklahoma’s adjutant general, Army Brigadier General Thomas H. Mancino, recently warned members of the National Guard that they would ultimately have to be vaccinated to stay in the service.

Mancino has backed Gov. Kevin Stitt’s position that the governor is the commander in chief of National Guard members when they are on Title 32 status — or state duty — and can shield them from the mandate. However, Mancino acknowledged that Guard members eventually will be called for federal duty under Title 10 of the U.S. code and be subject to the vaccine mandate for U.S. military personnel.

“Anyone exercising their personal responsibility and deciding not to take the vaccine, must realize that the potential for career ending federal action, barring a favorable court ruling, legislative intervention, or a change in policy is present,” Mancino said in his recent message.

“It is important you do not mistake my vigorous defense of the Governor’s rights under Title 32 as a guarantee you will not face consequences from Title 10 authority. I have no such power.”

Army National Guard members who aren’t activated for federal duty have until June 30 to be vaccinated.

Most of the Air National Guard members in Oklahoma have been vaccinated.

The suit filed by Stitt, Oklahoma Attorney General John O’Connor and 16 unnamed members of the Air National Guard on Dec. 2 is the only one in the country challenging the vaccine mandate for Guard members. Several challenges have been filed to the mandates for health care workers, federal workers and private businesses.

The suit initially cited only the executive order issued by President Joe Biden requiring civilian federal workers to be vaccinated.

Attorneys for the Biden administration argued that the failure to challenge the vaccine requirements that apply to the National Guard alone should prevent the state from getting a preliminary injunction or temporary restraining order.

The state amended its lawsuit Monday.

“This mandate ensures that many Oklahoma National Guard members will simply quit instead of getting the vaccine, a situation that will irreparably harm Oklahomans’ safety and security,” attorneys for the state told the judge.

“The same is doubtless true in many States.”

The attorneys called the vaccine mandate on federal employees unlawful, unconstitutional, and tyrannical.

“This does not reflect the Land of the Free,” they said.

Stitt complained in a letter to Defense Secretary Lloyd Austin that the mandate for Guard mem “violates the personal freedoms of many Oklahomans, as it asks them to potentially sacrifice their personal beliefs in order to not lose their jobs.”

The defense secretary responded that his decision to mandate vaccinations stemmed “directly from my responsibility as the Secretary of Defense to promote the health, safety, and readiness of our military personnel, regardless of duty status, to include all members of the National Guard performing any duty or training.”

“The concerns raised in your letter do not negate the need for this important military readiness requirement.”

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