Governor Greg Abbott is asserting his role as the Commander-in-Chief of the Texas National Guard in a lawsuit over Biden’s vaccine mandate, where he says 40% of the Guard have chosen not to get vaccinated.
DAILY MAIL – Texas Gov. Greg Abbott has sued President Biden over the administration’s military vaccine mandate, citing the governor’s authority ‘as Commander in Chief and on Texas’s sovereignty.’
Abbott filed suit Tuesday in Texas, asking a federal judge to overturn Biden’s vaccine requirement, in a filing that repeatedly invokes Abbott’s own authority as commander of chief of the guard, which is subject to complex jurisdiction.
Under overlapping statutes, state national guards remain under the command of governors except when they are called up for federal by the president. Title 10 of the U.S. Code applies to active duty military, while Title 32 applies to the Guard.
‘Defendants’ intrusion into the discretion and scope of Title 32 commanders is contrary to the balance of power between federal and state officials set out by the U.S. Constitution and federal law,’ Abbott argues in the suit, which names Biden in his professional capacity.
‘It is unlawful for Defendants to attempt to override the Governor’s authority to govern his troops, and then leave him to deal with the harms that they leave in their wake,’ according to the suit.
The suite cites the Texas state constitution, and claims the defendants’ actions ‘directly infringe on Governor Abbott’s authority as Commander in Chief and on Texas’s sovereignty, and so harm Governor Abbott and Texas.’
The deadline for troops to get vaccinated was December 31st. According to Abbott’s suit, 40 percent of members of the Texas Army National Guard under his command are refusing to get the shot for religious or other reasons.
Daily Mail reports that a federal judge has already blocked a similar effort:
Late last month, a federal judge blocked a similar effort by Oklahoma Gov. Kevin Stitt to block the vaccine mandate.
Defense Secretary Lloyd Austin, who himself recently tested positive for COVID-19, replied to Stitt with a letter invoked by the judge. ‘Citing the President’s authority over the Guard under 32 U.S.C. § 110, the Secretary expressed his view–not credibly contested by the plaintiffs in their motion or in any of the supporting materials–that to maintain a healthy and ready military force capable of protecting the American people, the immediate vaccination against COVID-19 is an essential military readiness requirement for all components and units of the military, including the Oklahoma National Guard.’
‘The COVID vaccination mandate should be understood against the backdrop of other military immunization mandates – which date back as far as General George Washington’s mandate that troops in the Continental Army be inoculated against smallpox. Nine vaccinations (now ten, with the COVID vaccination mandate) are required for all service members,’ wrote U.S. District Judge Stephen P. Friot.
Austin announced the policy in an August memo, and subsequently clarified that it applied to non-federalized members of the National Guard.
Friot is a Bush 43 nomination, in case you are wondering. Perhaps Abbott will get a judge that reads this differently. One thing is for sure, that it will be interesting to see how the 5th Circuit rules on this because I’m sure it will get there eventually.