Texas Gov. Abbott asserts role as ‘commander-in-chief’ of state National Guard units

Texas Gov. Greg Abbott (R) and Attorney General Ken Paxton (R) have mounted a challenge to President Joe Biden and his Defense Department’s mandate that all U.S. troops get vaccinated against COVID-19 — including those serving at the state level in the National Guard.

As the Daily Mail reports, the challenge, complete with a formal lawsuit, has raised an interesting legal debate over exactly who is the “commander-in-chief” of National Guard troops — the president or a governor — when they are not called up to serve at the federal level.

According to a letter from Abbott to his state’s troops — as well as the AG’s lawsuit — it is abundantly clear that the governor has asserted his role as commander-in-chief of Texas National Guard units over Biden, at least in certain circumstances.

Abbott takes the reins

The dispute first arose on Jan. 4, when Gov. Abbott sent a letter to the Texas National Guard Adjutant General, Major Gen. Tracy Norris, that directly ordered: “Do not punish any guardsman for choosing not to receive a COVID-19 vaccine.”

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

Abbott went on to note that Biden’s administration had threatened to punish — with docked pay, lost service credit, or even a discharge — any Guard member who fails to get vaccinated. But the governor promised to fight that with a lawsuit and let the federal courts settle it.

Paxton files suit

Enter the lawsuit filed by Attorney General Paxton on the same day highlighting the legal distinctions on who is in command of National Guard units: It’s the president, Paxton argues, while a unit is federalized under Title 10, and the governor at all other times when the Guard is non-federalized at the state level under Title 32.

The suit argues that the vaccine mandate and the punishments that come with defying it, at least with respect to Title 32 units, is illegal and unconstitutional.

It also argues that if the mandate was not blocked for Title 32 Guard units in Texas, the state would suffer harm both financially, in terms of lost federal funding, as well as in manpower necessary to respond to disasters and emergencies, among other things.

It’s up to the courts

How this lawsuit may fare in the courts remains to be seen, as other challenges to the military vaccine mandate have received mixed results thus far.

The Hill reports that Oklahoma previously sued the Biden administration over the mandate, raising many of the same arguments about state sovereignty and the distinction between Titles 10 and 32. The suit was rejected by a federal judge in late December.

However, The Washington Post reports that a federal judge in Texas just ruled in favor of a group of U.S. Navy SEALs who had their religious exemption claims summarily rejected by the Navy. The decision blocks the government from punishing those individuals.

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