Oklahoma National Guard Vaccine Standoff

The politicization of the virus continues.

Airman 1st Class Thadyn DuPont, an aerospace medical technician with the 137th Special Operations Medical Group, prepares to administer a coronavirus vaccine for an Oklahoma National Guard soldier at the Armed Forces Reserve Center in Norman, Okla., on Jan. 15, 2021. (Andrew LaMoreaux/U.S. Air National Guard photo)
Andrew LaMoreaux/U.S. Air National Guard photo

Stars and Stripes (“Vaccine mandate canceled by Oklahoma National Guard adjutant general despite Pentagon order“):

The new leader of the Oklahoma National Guard issued a memo Thursday ordering no troops will be required to take a coronavirus vaccine despite a mandate from the Pentagon requiring it, according to a news report.

Oklahoma Adjutant General Thomas Mancino updated the Oklahoma National Guard’s vaccination policy as one of his first acts in the job, noting “no negative administrative or legal action will be taken” against Guard members who decline the coronavirus vaccine, The Oklahoman reported Friday.

The decision comes after Defense Secretary Lloyd Austin in August issued a mandate requiring all service members to get the vaccine or be separated from the military for failing to obey a lawful order.

The Oklahoma National Guard declined to release Mancino’s memo to Stars and Stripes on Friday.

However, it was unclear Friday whether the Oklahoma National Guard can override the National Guard Bureau’s federal mandate that requires all Guard members to be fully vaccinated by June 30, 2022, said Air Force Sgt. Matt Murphy, a bureau spokesman. “It’s a legal gray area that would have to be reviewed by our lawyers,” he said.

The National Guard serves in state and federal capacities, which complicates the issue, Murphy said. “This is where the difference between Title 32 and Title 10 becomes a real becomes an issue,” Murphy said. “In most instances, the guardsmen are in their Title 32 capacity, which means they’re on state duty. In order to be federalized, they have to be on Title 10.”

Title 10 of the U.S. Code gives the National Guard Bureau authority to issue its mandate for Guard troops activated for federal missions, while Title 32 gives individual state’s the power to issue rules when Guard troops are operating under the state’s authority.

The National Guard Bureau’s vaccination deadline is different than the deadlines set by the Air Force and Army. The Air Force and Army require Guard airmen and soldiers to comply with their Nov. 2 and Dec. 15 respective vaccination deadlines to be mobilized on federal orders – more than six months before the bureau’s deadline.

“We have requirements in order to meet readiness standards,” Murphy said. “We have to comply with whatever the active-duty Air Force and active-duty Army requirements are.”

The Air Force does not separate the vaccination rates of service components, though about 92.8% of all Air Force, Air Force Reserve and Air National Guard airmen were vaccinated as of Tuesday, according to the service. Army National Guard vaccination rates were unavailable Friday.

Mancino’s memo came on his second day as adjutant general. On Wednesday, Gov. Kevin Stitt, a Republican, replaced Maj. Gen. Michael Thompson, who had been a vocal proponent for coronavirus vaccinations, with the 35-year National Guard veteran, according to The Oklahoman.

Murphy’s explanation isn’t quite right. There are actually three statuses for National Guard members why they’re activated: State Active Duty (sometimes seen as State Active Service), Title 32, and Title 10. These distinctions are important but often not well understood, even by many in the military.

When Guard forces are called up for wartime service, they’re activated under Title 10 orders and are, for all intents and purposes, in the same status as any other active duty member. That’s easy enough.

When Guard forces show up for weekend drills or annual training, they do so under Title 32 orders. They’re still under the command of the state governor but are paid by the US taxpayer and get credit toward their federal retirement and other federal benefits.

When Guard forces are activated to respond to a domestic emergency such as a hurricane, they’re typically called up as a state militia and placed on State Active Duty. They’re under orders of the governor and their salary and other expenses are paid out of the state treasury. They accrue no federal credits or benefits.

Where it gets tricky is that, if the President declares a national emergency, he (usually via the Secretary of Defense) can place Guard forces responding to it under Title 32 orders. Interestingly, they can do things—like riot control and other quasi-law enforcement activities—that Title 10 forces are prohibited from doing under federal law.

What’s happening in Oklahoma is in something of a gray area in that most of its Guard isn’t in any of these statuses at any given moment. They are, after all, civilians most of the time.

The Secretary of Defense has ordered that all National Guard members be vaccinated along with all other DoD personnel. He delegated to the various Service secretaries responsibility to establish deadlines and the chief of the National Guard Bureau, presumably recognizing that his personnel aren’t under his control most of the time, established a far-away deadline for vaccination of June 30.

Given that we have seven months to solve this standoff, I suspect we’ll see this play out slowly. But I don’t see why Austin couldn’t order BG Mancino to Title 10 active duty and then demand he comply with the lawful order already issued under penalty of court martial. Or, for that matter, federalize the entire Oklahoma National Guard for one weekend and have medics issue vaccines to those not already vaccinated.

Regardless, in the meantime we have someone wearing the uniform of a United States Army officer in active defiance of the orders of the Secretary of Defense, creating a minor crisis in civil-military relations, as noted by two well-regarded scholars in the field in the WaPo report on the incident:

Lindsay Cohn, a professor who studies civil-military relations at the Naval War College, said it appears the governor has pitted the state chain of command against the federal chain of command, and created a civil-military rift by attempting to use his authority over National Guard forces to make a public statement about the vaccine mandate.

Because the National Guard reports to state and federal officials, Cohn said, Army or Air Force leadership in Washington could pursue administrative action against anyone who resists the federal mandate. A governor, she said, cannot stop senior service officials from discharging people.

Still, the situation puts the Defense Department “in the very awkward position of pitting themselves against the governor and the still-powerful narrative” that the National Guard primarily belongs to the states, she said.

Peter Feaver, a political science professor at Duke University and expert on civil-military relations, said it’s not unprecedented for a governor to politicize his or her oversight of a state’s National Guard personnel, but that replacing an adjutant general “so as to flout” the Pentagon’s vaccine mandate is unhelpful. It’s problematic for readiness, he noted, and sends a message to the public that the gap is widening between active-duty military forces and the reserve components.

“It is one more sign,” Feaver said, “of corrosion in the professionalism that should be the hallmark of the total force.”

The various clashes between National Guard soldiers on state active duty with demonstrators during the Black Lives Matter and Stop the Steal demonstrations has me wondering why we continue to maintain a National Guard at all. I find it highly problematic to see people in uniforms with US Army or US Air Force emblazoned on them violating the 1st Amendment rights of their fellow citizens or, at very least, being seen as political pawns. At very least, they should be wearing non-camouflaged uniforms with something like “Oklahoma Militia” on them unless they’re under Title 10 orders or doing military training under Title 32.

FILED UNDER: COVID-19, Law and the Courts, Military Affairs, National Security
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mike says:

    Hopefully an easy fix for Secretary Austin w “a thanks for your service, enjoy retirement letter “ – but who can fire a state NG Adjutant?

    3
  2. OzarkHillbilly says:

    I know what I would do, but I have no idea if I could do…. it.

  3. Sleeping Dog says:

    …has me wondering why we continue to maintain a National Guard at all.

    You maybe at the vanguard of a movement beginning to ask the same question.

    4
  4. Cheryl Rofer says:

    The Right keeps on defying precedent and setting legal questions before us. James is willing to get tangled up in their legalities. The legal system has to do that if we’re going to remain under the rule of law that the Right so despise, but the rest of us can just say that these people are out to break the system and replace it with fascism.

    And that’s all we should say. The rest is a waste of our time and plays into their trap.

    Isolate them. Condemn their destructiveness.

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  5. James Joyner says:

    @Cheryl Rofer:

    James is willing to get tangled up in their legalities.

    It’s ultimately a legal question: How can the Secretary of Defense enforce an order on people who are, most of the time, not Defense Department employees?

    but the rest of us can just say that these people are out to break the system and replace it with fascism. And that’s all we should say. The rest is a waste of our time and plays into their trap.

    Well, okay. But the elected governor of Oklahoma appointed this guy specifically to do this thing. He may well have a legal right to do so in his capacity as the head of the state militia.

    Isolate them. Condemn their destructiveness.

    In the post you’re decrying, I call for SECDEF to order him to active duty and threaten to court martial him if he doesn’t carry out a lawful order and call this an instance of “someone wearing the uniform of a United States Army officer in active defiance of the orders of the Secretary of Defense, creating a minor crisis in civil-military relations.” Considering that we have seven months to go before the national deadline comes into play, that would seem strong enough.

    8
  6. Cheryl Rofer says:

    @James Joyner:
    Of course it’s a legal question. But writing or reading a post by those of us who are not lawyers is a waste of time. The point is that these are people who are not loyal to the United States and are willing to do anything to break the country. That point gets lost in the thicket of state law versus federal law, blah blah blah.

    Press the legal system to do what it must. And we can make these people social outcasts. Austria is considering a lockdown only for the unvaccinated. Our mandates are working, as indicated by the anti-vax rush to find a way to “cleanse” the vaccine once you’ve had the shot. (Spoiler: None of them work!)

    There are more of us than there are of them.

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  7. Kathy says:

    I’m sure the oath taken in the armed forces says something about following orders when you feel like it.

    Can the Oklahoma guard just be deactivated? Confiscate their equipment and bases, and let them do as they jolly well please.

    4
  8. Kingdaddy says:

    All Active Duty and Selected Reserve (including National Guard) personnel are required to receive the annual seasonal influenza immunization or obtain an exemption (i.e., medical or administrative), with a goal of 90 percent immunized by January 15th of each year. During an outbreak, pandemic influenza immunizations will be required or recommended as appropriate, depending on the immunization’s regulatory status at the time of the outbreak.

    Quoted from the 2019 immunization standards for the Department of Defense.

    https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/620502p.pdf?ver=2019-07-23-085404-617

    On the plane of general policy, we’ve had federal standards for National Guard unit readiness since at least the National Defense Act of 1916.

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  9. Thomm says:

    Here is something I learned today. Apparently a franchised business can avoid a dictate from the home office in regards to part time workers.

    2
  10. Mimai says:

    Thank you for writing this post James. I’m glad you took the time. I particularly appreciate your last paragraph. I had not really considered this. And especially because you wrote it, I now will.

    4
  11. James Joyner says:

    @Cheryl Rofer:

    And we can make these people social outcasts.

    We really can’t. They’re heroes in Oklahoma.

    @Kingdaddy:

    On the plane of general policy, we’ve had federal standards for National Guard unit readiness since at least the National Defense Act of 1916.

    We have, indeed. We’ve just had precious few legal challenges to test the limits. (PERPICH v. DEPARTMENT OF DEFENSE is the only case I know of directly applicable and its more than 30 years old and relies on the much more settled issue of the ability to call up Guard forces for federal missions.) I have little doubt that this will be resolved in favor of enforcing the mandate one way or the other but I find the process interesting.

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  12. Cheryl Rofer says:

    @James Joyner:

    We really can’t. They’re heroes in Oklahoma.

    That’s pretty glib. Do we know that? How many people in Oklahoma are vaccinated? How many think it’s a good idea to put the National Guard into a state of mutiny? Probably fewer than the national media lead us to think.

    3
  13. CSK says:

    @Cheryl Rofer:
    The percentage of fully vaxxed people in Oklahoma is 50.8.

    3
  14. Michael Reynolds says:

    These people are trying to bully the US government. From personal experience, there’s a very easy way to avoid being bullied: don’t be bullied. Every time, every single time, someone tries to bully you, walk away. If it means leaving school, leave school. If it means losing a job, lose the job. Or, if it’s someone down the food chain from you trying to act like a swinging dick, fire him.

    In this case the Defense Department should ‘fire’ the Oklahoma National Guard, in its entirety. I don’t know the terminology that would apply, but in effect, firing. Decertifying? Whatever the right term is for saying no more weekend warrior pay or benefits. Bye bye, we’ll get along just fine without you.

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  15. Stormy Dragon says:

    Wouldn’t the simple solutions be to just declare the units involved non-combat-ready and then let the normal consequences for failure to maintain combat-readiness happen?

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  16. @Cheryl Rofer: Speaking as someone in a deeply red state, he’s not wrong. The notion that national social pressure works the way you are hoping is, to be honest, wishful thinking.

    8
  17. Andy says:

    James,

    Very good explanation of the situation and the types of status on which Guard members can serve. I thought I’d just mention that during my military career I was on active duty, in the reserve, and also in the guard at various points. And I was part of the full-time workforce at a reserve unit where my job was to manage and train reservists, so I do understand the challenges of part-time military personnel and the unique and strange way in which the guard operates under two masters.

    @Stormy Dragon:

    Wouldn’t the simple solutions be to just declare the units involved non-combat-ready and then let the normal consequences for failure to maintain combat-readiness happen?

    Vaccination is a readiness requirement for federal (title 10) service. So this could mean that individuals and units who don’t meet the federal readiness standards won’t be activated or serve under Title 10 status. But readiness requirements can be waived in some circumstances. In theory, the National Guard Bureau could issue a policy that no one can take title 10 orders without being vaccinated.

    Since some have asked, the Oklahoma Guard can not be disestablished by Executive fiat. Those wishing for that result should write their representatives in Congress.

    But I think people ought to understand that the reserve and guard are not like active-duty troops. They are civilians most of the time. They can quit or go into the inactive reserve pretty easily. We saw a lot of that with the Anthrax vaccine in the late 1990’s.

    And a lot of this was by design, a product of Vietnam, the idea being to make it difficult to use reserve and guard forces in an unpopular war.

    2
  18. TurgidJacobian says:

    Wonder if they can be denied their service time accumulation.

  19. Gustopher says:

    @Cheryl Rofer:

    Our mandates are working, as indicated by the anti-vax rush to find a way to “cleanse” the vaccine once you’ve had the shot. (Spoiler: None of them work!)

    Please don’t give away the spoilers. If we can convince the idiots that drinking a quart of olive oil a day for a week will cleanse them of the vaccine, it means they will just comply and get the vaccine, and then be out of public while the vaccine is working in their system because they will be on the toilet.

    Also, it’s funny.

    6
  20. senyordave says:

    Hopefully there is a solution to this situation that doesn’t involve Biden backing down. But the bigger problem is that a significant number of Republicans, and a large number of Republican governors don’t seem to recognize Biden (or any Democrat) as the POTUS, and don’t even pretend that they are required to follow any rules or laws that they don’t like. Some of conservative America acts like anyone who doesn’t believe what they believe are the enemy. And the GOP leadership either believes that too or are too gutless to push back.
    Case in point:
    Sen. John Barrasso (R-WY) on Sunday just could not bring himself to offer even a mild condemnation of Donald Trump’s full-throated defense of a bloodthirsty mob calling for the execution of Mike Pence.
    I assume that the only way Barrasso would consider condemning Trump would be if it were Barrasso himself that the mob was calling to execute, and even then I wouldn’t want to bet on it.
    An entire generation of Republicans have been raised on Fox news, and it is showing.

    2
  21. gVOR09 says:

    @senyordave:

    I assume that the only way Barrasso would consider condemning Trump would be if it were Barrasso himself that the mob was calling to execute, and even then I wouldn’t want to bet on it.

    The mob was calling to execute Mike Pence, and he’s back to full Trump toady mode. So I don’t expect your cynicism about Barrasso is fully justified.

    1
  22. gVOR08 says:

    In the active duty Army what would happen to a Brigadier who publicly announced he was disobeying an order? Whatever it is, is there any reason it can’t happen to a Brigadier in the National Guard?

    1
  23. James Joyner says:

    @gVOR08: The problem is that the brigadier in question in in the governor’s payroll, not ours.

  24. Gustopher says:

    Does the national guard receive federal funding or equipment?

    Oklahoma can have its own state guard or whatever they want, but if they want it to be part of the national guard there are standards they should have to maintain.

  25. Thomm says:

    @Gustopher: thus my franchise comment earlier. If my dealership drops below standards set by gm, we can have our franchise pulled…even if it was done by actions if a part time employee Our gm may not be paid directly by general motors, but if his actions go counter to mandated standards, which in Cadillac’s case is high and can cost the dealership ownership lots of money to maintain, the franchise gets yanked and cars get pulled and redirected. Also can effect the ability of the ownership to obtain new franchises or even buying whole dealerships with existing ones, even if not gm. I’m sure making these guys considered non-deployable outside of state lines, pulling federal funding and confiscating any federal property that they own *is* within the federal perview.

    1
  26. Purple Martin says:

    @James Joyner: Not when activated to Federal active-duty per Title 10.

  27. Purple Martin says:

    @CSK: And those are the ones to be considered Heroes

  28. Franklin says:

    Well if the Oklahoma National Guard is going to cease being a well-regulated militia, perhaps it is time to deprive them of their Arms.

    /IANAL, am I reading the 2nd Amendment right?

    2
  29. Andy says:

    @Gustopher:

    Does the national guard receive federal funding or equipment?

    Oklahoma can have its own state guard or whatever they want, but if they want it to be part of the national guard there are standards they should have to maintain.

    As I noted earlier, contact your Congressional representatives. They control the structure and funding of the armed forces to include the guard. The states do have the authority to fund their own military forces, but naturally, none of them choose to do so except in states of emergency, and even then the cost of calling up the guard is almost always back-funded by the feds.

    I would just note that this is the act of a state governor, and the legal gray area will be resolved in due time.

    3
  30. James Joyner says:

    @Purple Martin:

    Not when activated to Federal active-duty per Title 10.

    Well, no kidding. That’s the whole point of the post: he’s not on Federal active duty under Title 10 but serving in his capacity as the head of the state militia under state active duty status.

  31. Tony W says:

    @Gustopher: There were a few days when a bath of Epsom salts, Eye of Newt, and a few other things were supposed to draw out the “poison” of the vaccine.

    I did my level best to get “at least 1/2 cup of blue food coloring” added to the bathwater for purely comic reasons.

    It never took hold, but I remain amused.

  32. Gerald Lance Johannsen says:

    The easy fix is for the OK National Guard defiance by its newly appointed top commander, is to defund the OK NG. Start with the threat of the “stick” and use it if necessary.