Texas Attorney General Ken Paxton sued President Joe Biden and the nation’s top military officials Tuesday, January 4, 2022, on behalf of Gov. Greg Abbott, telling a federal court that the Pentagon’s vaccine mandate improperly stepped on Abbott’s authority over state troops.
“This case seeks protection from the federal government’s unconstitutional action to force Texas, through its governor, to submit to federal orders,” the lawsuit argued.
Abbott issued his lawsuit threat in a letter to the Texas Military Department, reminding officials that, as commander of Texas military units, he issued an October order prohibiting officers from punishing Texas National Guard members who decline to be vaccinated.
“Although my order has been in effect for months now, President Biden has muddied the waters with a vaccine mandate from the U.S. Department of Defense,” Abbott said in Tuesday’s letter to Maj. Gen. Tracy Norris, head of the Texas Military Department.
“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 wrote.
The governor, who has issued executive orders banning vaccine mandates by businesses and governments in Texas, said the federal vaccine rule violated the U.S. Constitution’s Second Militia Clause by undermining his power as commander-in-chief of the Texas National Guard.
Abbott told Norris that he will ask a federal judge to block the vaccination mandate.
“I cannot guarantee that the judiciary will grant the relief you deserve. 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 wrote.
In August, Defense Secretary Lloyd Austin directed members of the U.S. military, including the National Guard, to be vaccinated against COVID-19, saying the preventive measure was essential to maintaining the nation’s military readiness.
Austin followed with a late-November memo outlining the impact non-compliance would have on nonfederalized troops, such as National Guard members, saying that unvaccinated soldiers will not be paid using federal defense money, nor will they be allowed to participate in drills, training, or other duties, Austin said.
In his letter to Norris, Abbott said the federal rules pose a “career-ending threat to Texas’s unvaccinated guardsmen.”
“In short, the Biden DoD is threatening to take direct action against guardsmen who do not submit to a vaccine mandate that the State of Texas declines to enforce,” Abbott wrote.
Last week, however, a federal judge sided with the Defense Department over Oklahoma Gov. Kevin Stitt, a Republican who also challenged the military’s vaccine mandate for his National Guard troops.
U.S. District Judge Stephen Friot said the Pentagon did not overstep its authority because Guard members already are required to receive nine other vaccines. The judge also said the vaccine mandate was justified as a strategy for preserving military readiness.
Paxton’s lawsuit was not the state’s first attempt to overturn federal vaccine rules.
Last month, Paxton sued to block a Biden administration rule imposing a vaccine mandate on employees of Medicaid and Medicare providers and suppliers. And on Monday, a separate Paxton lawsuit prompted a federal judge in Lubbock to issue an order blocking a vaccine requirement for staff and volunteers of the federally funded Head Start child education program in Texas.
Abbott’s tactics drew fire from two directions heading into the 2022 election season.
His leading Democratic opponent, Beto O’Rourke, criticized the attack on vaccine mandates as part of Abbott’s continued lack of leadership in a pandemic that is worsening as the highly contagious omicron variant surges.
“COVID hospitalizations in Texas have doubled in the past two weeks. They’ve tripled among children. We’re sending more kids to the ER than any other state because Abbott refuses to lead,” O’Rourke said.
State health officials have reported 4.75 million positive cases of COVID-19, and that number is projected to pass 5 million by the end of the week, O’Rourke said.
Two GOP primary opponents, running as the more conservative alternative to Abbott, also attacked the governor’s leadership.
“Lawsuits aren’t leadership,” Don Huffines said on Twitter. “You’re the commander in chief of the Texas National Guard. You can protect them from vaccine mandates without asking a court.”
Allen West tweeted a succinct: “Lawyers sue … Warriors lead.”