Gov. Greg Abbott sues Biden administration over vaccine mandate for National Guard

Texas National Guard members stand outside the Texas Capitol during a protest on June 19 over the death of George Floyd in Austin. Gov. Greg Abbott said Tuesday the state will sue the Biden administration over its mandate requiring Texas National Guard members to get the COVID-19 vaccine. (Miguel Gutierrez Jr./The Texas Tribune, Miguel Gutierrez Jr./The Texas Tribune)

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In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott is suing the Biden administration for requiring Texas Army National Guard members to get vaccinated against COVID-19.

The suit, filed Tuesday in the Eastern District of Texas, is the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic. The legal battles include litigation over vaccine mandates for large businesses, health care workers and federal contractors.

In a letter issued to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

“And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID-19 vaccine,” Abbott wrote. “To the extent the [Department of Defense] vaccine mandate conflicts with the order I have given, my order controls.”

According to the Department of Defense, each state’s National Guard members are under the command of their respective governors, but they can be “federalized” during times of federal emergency, a process that Abbott said has not taken place.

Last year, U.S. Secretary of Defense Lloyd J. Austin III issued a memo calling for mandatory vaccination against COVID-19 for members of the armed forces, including the National Guard. Under the mandate, Air National Guard members had until the end of 2021 to receive the vaccine, while Army troops have until June, according to the Department of Defense. Those who refuse to get vaccinated could get their pay or training suspended and could be discharged if they continue to refuse.

Currently, about 90% of Texas Air National Guard are fully vaccinated, with 10% “going through the exemption process,” the Texas Military Department said. The department said on Tuesday it could not provide vaccination numbers for the Texas Army National Guard ahead of its vaccine deadline.

Abbott condemned the federal mandate in a December letter to Austin, and in October he had ordered Norris not to punish Texas National Guard members who refused to get the vaccine.

Abbott’s lawsuit accuses the Biden administration of not following the proper “chain of command” as well as usurping “state-level control” and Abbott’s powers as commander-in-chief of the Texas National Guard.

The Biden administration has maintained that the U.S. secretary of defense still has the power to require vaccines.

"The secretary of defense has the authority to require these vaccines for all members of the force, including the National Guard, as I said, even in a Title 32 status," said John F. Kirby, the Pentagon press secretary, in a statement in November. "When (National Guard members are) called up for their monthly training, they're still federally funded. So (the secretary) has those authorities. And he believes, and this is a larger point, that vaccinated forces are a more ready force."

The Department of Defense and the National Guard Bureau did not comment on the lawsuit Tuesday.

Recently, a federal court denied a similar lawsuit from Oklahoma Gov. Kevin Stitt, who challenged the Pentagon’s vaccine mandate.