The Pentagon’s COVID vaccine battle is on its way to court

The Pentagon’s fight against COVID-19 vaccine holdouts is on its way to court.

While the big question is whether the US military has exceeded its legal authority by forcing all service members to be vaccinated, the battle is expected to unfold across a number of fronts over the coming weeks and months.

From the Pentagon’s already messy clashes with Republican governors claiming full control of the National Guard’s forces to its hard line against troops seeking vaccine exemptions on religious grounds, the Department of Defense faces numerous high-profile legal battles fraught with national security implications.

The cases will include issues of federalism, First Amendment rights and other key issues that form the background to what has emerged over the past year as the most controversial military health initiative in American history.

Deadlines for active vaccination against coronavirus for each military service passed weeks ago. With thousands of service members still refusing vaccination and seemingly willing to lose their careers because of the case, the Marine Corps, Army, Navy and Air Force are now facing the dismissal of the unvaccinated.

Army Public Affairs has indicated that the Pentagon will begin removing unvaccinated soldiers “beginning in January.”

With that as a backdrop, powerful Republican lawmakers are throwing their legal weight behind troops who say they have deep religious or moral objections to the vaccine.

In mid-December, eight GOP senators and nearly 40 members of parliament filed an amicus brief in a federal court supporting more than two dozen Navy SEALs who have filed religious objections to Defense Secretary Lloyd Austin’s vaccine mandate.

The group of SEALs has a pending lawsuit against the Biden administration over the vaccine mandate at the U.S. District Court for the Northern District of Texas.

The amicus brief signed by such prominent Republicans as Sens. Ted Cruz of Texas and Mike Lee of Utah claim that SEALs, along with other military personnel, deserve the freedom to choose whether or not they will be vaccinated.

“Our men and women in uniform have fought to protect the freedoms that every American, regardless of faith, enjoys,” it states succinctly. “Now they are asking this court to protect their religious freedom from interference by the very government they have sworn to protect with their lives.”

So far, the Pentagon has not approved any religious exemptions for the vaccine, despite thousands of requests made by forces across services.

The most exciting legal battle may stem from the Pentagon’s clash with Republican governors over vaccine requirements for National Guard personnel.

Led by Oklahoma Governor Kevin Stitt, at least half a dozen GOP-led states claim that guard forces remain under state control until they are called up for federal service, claiming that the forces are not currently under Mr. Austin’s mandate. .

Mr. In early December, Stitt and Oklahoma’s state prosecutors filed a federal lawsuit challenging the Pentagon’s vaccination mandate. In a statement at the time, Mr Stitt claimed that Mr Austin had exceeded his constitutional authority.

For his own part, the Minister of Defense has warned that any guard troops who have not been vaccinated within the respective deadline of their service will not be able to participate in exercises and will subsequently not be paid.

Legal researchers say the governors are facing an uphill battle against the Pentagon chief’s mandate.

“The governors are certainly free to ask Secretary Austin to withdraw his directive, but the law does not force him to do so. The fact is, he has the legal authority to require members of the National Guard to meet certain vaccination standards,” the retired man said. Air Force General Charles J. Dunlap Jr., Executive Director of Duke University’s Center for Law, Ethics, and National Security.

“If a governor wants a ‘militia’ force free of all federal demands, they can establish – and fund – their own state defense force separate from the guard, but no federal money or equipment would flow to it,” General Dunlap told The Guardian. Washington Times.

Mr. Stitt’s actions in Oklahoma, meanwhile, have inspired other Republican governors around the country.

Following Mr. Stitt’s assertion that he will not enforce the vaccine mandate on Oklahoma National Guard forces, the governors of Iowa, Alaska, Wyoming, Mississippi and Nebraska have all said they will not enforce the mandate on forces in their own states either.

The group of governors also wrote a collective letter to Mr Austin in which they argued that they retain control of the guard forces unless and until the forces are activated for federal service.

‘Your promise to earn’

Republican governors have put forward a broader case on the potential fallout for U.S. armed forces if the vaccine mandate remains in place as it is currently constructed.

“It is unscrupulous to believe that the government will go so far as to deprive these honorable men and women of the nation’s supreme duties if they do not comply,” Iowa Governor Kim Reynolds said in a statement accompanying the letter in mid-December. as she and the U.S. government. other Republican governors sent to Mr. Austin.

The Pentagon has argued that military preparedness – even at the level of the National Guard – may suffer as a result of unvaccinated personnel.

“As I have said before, vaccination of the force will save lives and is crucial to our preparedness,” Mr Austin wrote in a November memorandum setting out the new vaccination policy for the National Guard forces.

While governors have great authority over guard troops, legal scholars generally agree that authority does not mean that guard troops can be exempted from federal rules, such as health standards.

Some specialists also claim that there is a clear precedent for federal guidelines that override a governor’s wishes.

“There is no good authority for this muscular conception of a state governor’s commander-in-chief of the National Guard,” according to Michael Paradis, a senior lawyer in the Department of Defense’s Military Commission, and Emily Eslinger, a research fellow at the National Institute of Military Justice.

The two wrote in a recent analysis for the website Lawfare that “governors have made similar arguments [in the past] for remaining power over the National Guard members of their respective states in the past and lost. “

With regard to the specific question of the authority over vaccinations, Mr. Paradise and Ms. Eslinger that “the federal rules of the militia displace any remaining supreme commanding power that a governor may retain.”

“If a state governor issues an order in violation of federal law,” they wrote, “that order is illegal, and subordinates follow it in violation of federal law at their peril.”

For more information, visit the Washington Times COVID-19 Resource Page.

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