A member of the Oklahoma National Guard prepares to administer a COVID-19 vaccine on Feb. 23, 2021. (Jordan Sivayavirojna/U.S. National Guard )
(Tribune News Service) — The Biden administration urged a federal judge on Wednesday to reject Oklahoma’s challenge to the COVID-19 vaccination requirement for National Guard members, saying the state didn’t even challenge the correct mandate.
“As an initial matter, Plaintiffs fail to challenge the vaccine requirements that apply to the National Guard,” the administration said in response to the lawsuit filed Dec. 2 by the state and 16 anonymous members of the Oklahoma National Guard.
The lawsuit challenges an executive order issued by President Joe Biden that requires federal employees to be vaccinated, the Biden administration said Wednesday, and that order doesn’t apply to the military.
That alone should prevent the state from getting a preliminary injunction to shield unvaccinated Oklahoma National Guard members from disciplinary measures, the administration said.
Even if the state had challenged the correct mandate, it still would not prevail because federal officials, not state ones, dictate military policy, the administration told Senior U.S. District Judge Stephen Friot, who is hearing the case.
“The law is thus clear: Congress and those federal officers using the authority delegated from Congress set the standards for service in the United States military, including service in the National Guard,” the administration said.
“The State of Oklahoma is of course free to establish a separate state defense force under the exclusive control of the state ... But as far as the National Guard is concerned, the State of Oklahoma cannot allow service members to defy the lawful orders and rules of federal military authorities.”
Gov. Kevin Stitt has claimed that Oklahoma National Guard members who have not been activated for federal duty are under his command and do not have to obey Defense Secretary Lloyd Austin’s order that they be vaccinated against COVID-19.
Stitt sent a letter to Austin asking that Oklahoma members be exempt from the mandate while on state status, but Austin responded that the order was a valid one to ensure military readiness.
Members of the Air National Guard have until Dec. 31 to be vaccinated, while the deadline for members of the Army National Guard is June 30.
Despite Stitt’s public claims, which are reiterated in a memo from Oklahoma Adjutant General Thomas H. Mancino, the lawsuit filed in Oklahoma City on Dec. 2 doesn’t argue Stitt’s authority as commander in chief supersedes that of Austin. Instead, it cites the executive order issued by Biden for the civil service.
A spokeswoman for Oklahoma Attorney General John O’Connor did not respond to questions from The Oklahoman earlier this month about why the lawsuit didn’t raise the military challenge.
In the response filed Wednesday, the Biden administration said, “Plaintiffs challenge the President’s vaccination requirements for federal employees in EO (Executive Order) 14043, issued pursuant to his authority under Title 5.
“Yet the vaccination requirements for members of the National Guard are issued pursuant to Titles 10 and 32 and have required members of the National Guard to be vaccinated against various diseases for decades.”
In declarations to the court, anonymous Air National Guard members cite various reasons for not wanting to be vaccinated and say they would suffer irreparable harm if they are forced to leave the Guard.
Biden administration attorneys argued Wednesday that the Guard members aren’t allowed to sue anonymously without prior court permission. Also, the administration said, they wouldn’t be eligible to file a lawsuit until some action was taken against them and they exhausted all of the military appeals provided.
“Here, that means a plaintiff must seek any applicable exemptions, pursue all appeals, and then if those are denied, must still wait until the military concludes any adverse action, and pursue all available appeals of adverse action,” the administration told the judge.
“There is no evidence that any of the individual Plaintiffs has done so.”
Friot has scheduled a hearing for Dec. 30 in the case, though he told attorneys last week that he would review the written arguments and decide by Dec. 23 if the hearing is necessary.
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