FederalGov. Abbott Announces Lawsuit Against Biden Administration for National Guard Vaccine Mandate

The governor said in a letter that he is suing the Biden administration over its effort to mandate COVID-19 vaccines for members of the Texas National Guard.
January 4, 2022
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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.”

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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.”

However, he also acknowledged that the courts might not be favorable to his suit, saying, “I cannot guarantee that the judiciary will grant the relief you deserve.”

Last week, a federal court rejected a request from Gov. Kevin Stitt of Oklahoma for a preliminary injunction against the Biden administration’s vaccine mandates for national guards.

But the announcement of Abbott’s lawsuit comes on the heels of a victory in a Texas federal district court for those opposed to vaccine mandates, as a judge granted an injunction against the Navy for its denial of religious exemptions to the mandate.

Abbott also noted that Biden could require guardsmen to be vaccinated regardless of a court ruling, saying, “if President Biden lawfully calls you into the actual service of the United States, then he could order you to receive the COVID-19 vaccine in his newfound role as your commander-in-chief.”

The requirement for members of the Texas National Guard to be vaccinated has been one of the many talking points by Abbott’s GOP primary opponents such as Allen West and Don Huffines, who have criticized the governor for not taking a stronger stance against the federal government on the issue.

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Daniel Friend

Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.