Biden should veto NDAA as long as it includes vaccine termination

By using the military as a political pawn in the political and cultural wars, some in Congress are willing to weaken U.S. military readiness, undermine command decisions, and degrade obedience to orders.

How is Congress risking national security? By holding the annual defense spending bill hostage to a rescission of the military’s mandatory coronavirus vaccination program.

Defense Secretary Lloyd Austin ordered troops vaccinated against COVID-19 last year specifically to safeguard the U.S. Armed Forces, as the Pentagon has with numerous other vaccine programs. Since that order, the vast majority of active-duty military members have complied with this lawful order. Only a few thousand (out of 1.4 million active-duty members) placed their personal desires ahead of their obligations to their colleagues, units and chain of command by refusing the vaccine. Many have since been discharged (and were lucky they were not criminally prosecuted for their disobedience, as occurred with past vaccine refusals.)

Instead of showing concern for the health of individual service members and — critically — for units’ readiness to fight, Republicans from the start have used the vaccine mandate as a political cudgel, encouraging service-member challenges.

The U.S. Supreme Court has batted down such lawsuits, though several remain. Those in litigation now have little chance of success, as the high court reasonably places national security concerns over soldiers’ individual proclivities. Yet the lawsuits will be moot if Congress orders the program’s termination, thus championing the disobedience of a minority over the honorable obedience of the many.

Some on Capitol Hill figure that by inserting this revocation inside the pending NDAA, President Biden will blink first and betray his own Defense Secretary and the millions of service members who honorably followed orders and were vaccinated.

The Commander-In-Chief should keep his eyes open and wield his veto pen faster than one can say, “I bet China and Russia would love to see the U.S. military hobbled by sick units and lasting discontent in the ranks.”

The main Republican argument against military vaccination is not freedom of religion, as the lawsuits allege (though that lurks in the background); lawmakers instead claim a deleterious effect on recruiting. Yet young people aren’t enlisting in fewer numbers because of the vaccine mandate (the tight labor market and a shrinking pool of eligible candidates are instead the leading causes of recruiting woes).

The real argument against the current Defense Department vaccine program stems from the facts that first, it’s a poor recruiting season per the reasons stated above; second, the Army Guard has the highest vaccine refusal rate within the Department of Defense; and third, the Guard seems to finally be gearing up to discharge its refusing soldiers (it’s lagged well behind the active duty in this regard). With this trifecta, Republicans have a convenient bogeyman — the vaccine mandate — on which to blame anticipated recruiting shortfalls.

This rationale isn’t simply disingenuous; it’s also dangerous. There’s a reason the Army Guard has higher disobedience rates than the active duty regarding vaccinations, and that reason seems largely due to poor, arguably insubordinate, leadership. A few national guard leaders, in cahoots with their state governors, were near mutinous last year in their countermanding of Secretary Austin’s vaccine order.

Such refusal by top guard brass to follow the hallowed constitutional structure of militia regulation by the federal government naturally worked to encourage disobedience by their guard members; these guard troops are now facing discharge at rates higher than in the active force, largely thanks to their commanders’ dereliction of duty.

I argued last year that courts-martial were too severe a response for simple vaccine refusal if the military could afford to instead discharge disobedient members; however, if Republicans are right, the military can no longer afford such losses, at least within guard units. Hence the Pentagon should consider placing disobedient guard members on active-duty orders and court-martialing them.

As with anthrax vaccine refusals several decades ago, the deterrent effect of a criminal conviction for disobedience of a lawful order is likely to sharply reduce the number of guard troops who have lost their military moral compass. Such prosecutions should start with those at the highest ranks, thus hopefully avoiding the need to prosecute the rank and file who were badly led.

At the very least, the White House should not cave to the politicians who are exploiting the minority in uniform influenced by misinformation lobbed in political and cultural battles.

President Biden should veto the NDAA as long as it includes a vaccine termination clause.

A veto is the right thing to do by the well over a million service men and women — on active duty, in the national guard and the reserves — who faithfully followed orders to keep themselves, their units, and this nation safe. Otherwise, the president will be proving that disobedience — with enough political support — pays.

Rachel E. VanLandingham, is professor of law at Southwestern Law School, Los Angeles, a retired U.S. Air Force Lt. Col. and current president of the National Institute of Military Justice.

NOTE: At the request of the author, this post has been updated from the original to change the first word of the last sentence of the third paragraph to “Many.”