Another day, another lawsuit against the Biden Administration over unconstitutional federal overreach, in this case issuing a vaccine mandate for Texas National Guard troops that aren’t under federal control.
Gov. Greg Abbott sent a letter on Tuesday to Texas Military Department (TMD) Adjutant General Tracy Norris stating his intention to sue the Biden administration over its effort to mandate COVID-19 vaccinations for members of the Texas National Guard.
In August, Abbott issued an executive order prohibiting governmental entities from mandating “any individual to receive a COVID-19 vaccine,” but mandates over the Texas National Guard have been unclear.
Following a military-wide order in August from U.S. Secretary of Defense Lloyd Austin mandating the vaccine, Norris issued a directive to members of the Texas National Guard that service members must meet the requirement or submit a request for a medical or religious exemption.
On November 30, 2021, Austin issued a memorandum that further stipulated “all members of the National Guard must be fully vaccinated for COVID-19 [. . .] in order to participate in drills, training and other duty conducted under title 32.”
In December, Abbott responded to Austin’s memorandum in a letter, saying, “If the federal government keeps threatening to defund the Texas National Guard, I will deploy every legal tool available to me as Governor in defense of these American heroes.”
TMD public affairs staff previously stated that guardsmen “serving on Title 10 orders” — those who have been called on active duty at the national level — were required to be in compliance with the vaccine mandate or request an exemption by December 15, 2021.
Unvaccinated members of the Texas National Guard could potentially lose drill and training pay as those funds come from the federal Department of Defense (DOD).
In his new letter, Abbott specified that it “addresses all Texas guardsmen who are serving in a Title 32 or a state active duty status,” rather than those under Title 10 orders.
“Unless President Biden federalizes the Texas National Guard in accordance with Title 10 of the U.S. Code, he is not your commander-in-chief under our federal or state Constitutions. And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine,” said the governor.
Abbott said that 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.”
Texas Attorney General Ken Paxton sent out a Tweet confirming the lawsuit:
Biden is NOT the commander-in-chief of the Texas Military Dep’t. That’s @GovAbbott’s job.
Biden is once again attempting to use federal power to bully state troops to get a Covid vax. This is wrong—and illegal. And I won’t let it happen.
I’m suing you again, Biden! pic.twitter.com/grZcqCP19Z
— Attorney General Ken Paxton (@KenPaxtonTX) January 4, 2022
The text of the lawsuit itsself can be found here.
1. There has long been a clear and distinct line between when National Guardsmen are governed by state authority and when they are governed by federal authority. When National Guardsmen are serving the State, the federal government has no command authority. Neither the President nor federal military officials can order the Governor of Texas and state officials how to govern the Guardsmen under their command. Under the Constitution’s carefully crafted balance between federal and state sovereignty, only the State, through its Governor, possesses legal authority to govern state National Guard personnel who have not been lawfully federalized.
2. Defendants unilaterally severed the division between state and federal authority over the Army National Guard and Air National Guard by attempting to impose a mandatory COVID-19 vaccine policy (“Military Vaccine Mandate”) on Guardsmen under state control, and in violation of Texas state law. Rather than exercise their own authority and lawfully activate the President’s chain of command, Defendants have attempted to force state officers to do the work for them, in violation of both the U.S. Constitution and federal laws.
3. This is not a case demanding a position of pro- or anti-vaccine, nor is it a case that challenges any aspect of the federal government’s authority over National Guardsmen once that federal authority has been properly established. Instead, this case seeks protection from the federal government’s unconstitutional action to force Texas, through its Governor, to submit to federal orders and impose federally dictated disciplinary action on its National Guardsmen. “There is no military exclusion from our Constitution.” U.S. Navy Seals 1-26 v. Biden, No. 4:21-cv-01236, slip op. at 2 (N.D. Tex. Jan. 3, 2021). Therefore, Plaintiff Greg Abbott, in his official capacity as Governor of the State of Texas, and as Commander in Chief of the Texas National Guard, brings this suit to enforce rights guaranteed to the Governor and the State of Texas by the U.S. Constitution and federal statutes.
The Roberts Court has tended to show considerably deference to state rights and prerogatives, so expect Texas to prevail in this suit if it reaches that level. But who knows how lower courts will rule, or how long it will take the case to wind its way to the Supreme Court…