Editor's note: Texas Gov. Greg Abbott filed a lawsuit late Tuesday against President Joe Biden, Defense Secretary Lloyd Austin and the military service secretaries opposing a mandate that National Guard troops be vaccinated against COVID-19.
Texas Gov. Greg Abbott is digging in against COVID-19 vaccinations and related mandates, telling National Guardsmen in his state they can ignore Pentagon inoculation rules and will not face any retribution for not getting coronavirus vaccines.
On Tuesday, the Republican governor, who is facing challenges from his political right in a reelection bid next year, threatened to file a federal lawsuit challenging the Biden administration's authority to order troops to be inoculated against COVID-19.
"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," Abbott said in a letter for Maj. Gen. Tracy Norris, the adjutant general of the Texas National Guard. "And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine."
Abbott, along with at least six other Republican governors including Oklahoma, Wyoming, Alaska, Iowa, Mississippi and Nebraska, have asked the Pentagon to exempt their Guardsmen from coronavirus vaccine mandates, asserting their authority while troops serve under their command.
Guardsmen have dueling obligations to both the governors of the state they serve and the president. During the bulk of their service, troops fall under either State Active Duty or Title 32 orders, meaning they are under the command of the governor. Guardsmen can also be activated under federal Title 10 orders, which are usually reserved for overseas missions that make up a significant portion of the Guard's mission portfolio.
The fight sets up a power struggle between states and the Pentagon over who has default control of the Guard, something that has never been fully articulated in courts or military law.
Abbott's letter did not take issue with the dozen-plus other vaccines Guardsmen – and all other service members – are ordered to receive, including vaccinations against hepatitis and smallpox and annual flu shots. He does concede Biden has the authority to require vaccines for Guardsmen on federal orders.
"I cannot guarantee that the judiciary will grant the relief you deserve," Abbott added. "And 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."
Abbott's threat, which does not include an actual lawsuit yet, comes a week after Judge Stephen Friot from the Western District of Oklahoma threw out Oklahoma Gov. Kevin Stitt's suit against the Biden administration challenging the vaccine mandate.
"The court is required to decide this case on the basis of federal law, not common sense," Friot wrote in a ruling. "But, either way, the result would be the same."
The judge's ruling spurred Brig. Gen. Thomas Mancino, the top officer of the Oklahoma Guard, to warn Air Guardsmen in his state that they cannot report to their monthly drill if they are unvaccinated, after previously telling them they would not face administrative punishment before the state's lawsuit.
The Air National Guard's vaccine deadline was Dec. 2. Army Guardsmen have until June 30.
"All you can do as a leader is make the right decisions, for the right reasons, then own them all," Mancino said in a statement the day after the judge's ruling. "I have decided to not allow unvaccinated Oklahoma Air National Guard Drill Status Guardsmen (DSGs), without a medical exemption or religious accommodation request, to participate in any future drill period, except for any Airmen wishing to be vaccinated. The Governor concurs with this decision."
Abbott has deployed a massive number of Texas Guard troops in an unprecedented mission on the U.S.-Mexico border, which leads many of them to serve on Title 32 orders for up to a year at a time. That means those troops could potentially stay unvaccinated while responsible for working with an influx of migrants.
Officials with the Texas National Guard have refused to disclose the exact number of troops the governor has activated, and it is unclear whether that number is disclosed to the Defense Department and National Guard Bureau. Abbott has said that 10,000 state law enforcement officers and Guardsmen in total have been sent to the border.
-- Steve Beynon can be reached at Steve.Beynon@military.com. Follow him on Twitter @StevenBeynon.