Oklahoma sues to exempt National Guard from Pentagon vaccine mandate

The state of Oklahoma filed a federal lawsuit on Thursday seeking to stop the Biden administration from mandating coronavirus vaccines for the National Guard.

The complaint, which names President Biden and Defense Secretary Lloyd Austin as defendants, asks the court to declare the mandate unconstitutional and to enjoin the government from enforcing it or withholding funding from the Oklahoma National Guard or its members.

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

The Department of Defense didn’t directly comment on the lawsuit due to pending litigation. 

But in a statement to The Hill, Pentagon Press Secretary John Kirby said all service members in active and reserve components are “required to comply” with the vaccine mandate.

“Failure to receive the vaccine may jeopardize an individual member’s status in the National Guard; any impact to a member’s status in their state militia is an issue for state authorities,” he continued. “The Governors may not relieve individual members of the Guard from their obligation to comply with this valid medical readiness requirement established by the Department.”

The lawsuit, filed by Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor (R) is the latest development in a sparring match between the Pentagon and the Oklahoma National Guard over the vaccine mandate.

Austin required vaccinations for the military in late August, but left it up to the military services to implement the mandate.

The deadline for Air National Guard and Air Force Reserve personnel to get vaccinated was Thursday, and the Army set a June 30 deadline for its reservists and guard members.

Stitt asked Austin in early November to exempt his state’s National Guard from the vaccine mandate. Shortly after, Stitt appointed a new commander of the Guard, Army Brig. Gen. Thomas Mancino, who wrote a memo stipulating that no member of the guard is required to get vaccinated.

At issue are two federal laws concerning who controls the National Guard.

Stitt argues that under Title 32 of the U.S. Code, he holds authority over his guardsmen unless they are activated for a federal mission.

But under Title 10, the president can mobilize the guard, which places them under federal authority.

Austin issued a memo on Tuesday ordering all National Guard and Reserve service members to be vaccinated, arguing that the Pentagon can enforce the mandate even when guardsmen are on state duty.

Austin further said that those who do not comply will be marked absent without cause from drills and training, which would impact the days service members accrue towards retirement. Service members can even face loss of pay.

In a statement, Stitt maintained that he was in control of the Guard under Title 32, and said it was “unconscionable” that the Biden administration is “choosing to play politics with military paychecks, especially amid the highest inflation rate in 30 years and so close to the holiday season.” 

“Threatening the pay of National Guard members is manifestly unlawful and unfair, as unvaccinated active-duty personnel do not have their pay withheld,” he said. “I will continue fighting to protect Oklahoma against this alarming pattern of unconstitutional federal overreach coming from the Biden administration.” 

Thursday’s suit extends beyond the Pentagon mandate, asking the court to block the vaccine mandate for all federal employees as well. 

Biden announced that mandate in September, and the deadline to comply was Nov. 22. However, the federal employees who do not comply will not face serious penalties until January.

“The vaccine mandate on federal employees is unlawful, unconstitutional, and tyrannical,” reads the complaint. “This does not reflect the Land of the Free. The mandate’s enforcement should permanently be enjoined.”

The White House referred comment on the lawsuit to the Pentagon. 

Updated Friday at 10:19 a.m.