Just hours after Gov. Greg Abbott finally ended the COVID-19 disaster declaration, he announced that he won an appeals case against the Biden administration for attempting to enforce vaccine mandates on the Texas National Guard. 

In January 2022, Texas Attorney General Ken Paxton filed a lawsuit against President Joe Biden to stop him from forcing the Texas Army National Guard and the Texas Air National Guard to get coronavirus vaccinations.

Over a year later, the U.S. Court of Appeals for the 5th Circuit issued its ruling that the Constitution and laws of the United States deny Biden the power to punish members of the Texas National Guard if they refused to get injected with the vaccine. 

Circuit Judge Andrew Oldham stated in his opinion that he rejects the president’s assertion of power over the members because they were not called into national service.

In this case, President Biden imposed and then repealed a mandate requiring State militiamen to take the COVID-19 vaccine. And now that the President has rescinded the vaccine requirement, he wants to retain the power to punish militia members who refused to get the shots while the mandate was in effect—all without calling them into national service. We reject the President’s assertion of power because it would undermine one of the most important compromises in the Constitution. If the Constitution’s text, history, and tradition make anything clear, it’s that the President can punish members of the Texas militia only after calling them into federal service.

In Paxton’s lawsuit, he argued that neither the president nor federal military officials can force the state’s National Guard to comply with vaccination mandates. 

“Neither the President nor federal military officials can order the Governor of Texas and non-federalized National Guardsmen to comply with a vaccination mandate or to direct a particular disciplinary action for failure to comply,” Paxton’s office wrote in a press release. “President Biden is not those troops’ commander-in-chief; Governor Abbott is.”

The court ultimately upheld Paxton’s assertion, stating that while the relationship between the National Guard and states is complex, the governor does indeed remain in charge of the state’s National Guard. 

“Although the State National Guard is funded largely by the federal government, the Governor remains in charge of the National Guard in each [S]tate except when the Guard is called into active federal service,” the opinion said.  

The State of Texas, for example, trains members of the Texas National Guard and appoints its officers. The Governor also retains the authority to activate the State’s Guardsmen to assist with State missions (such as responding to natural disasters, riots, terrorist attacks, &c.) That is why we’ve said “the [N]ational [G]uard is the militia, in modern-day form, that is reserved to the [S]tates by Art. I § 8, cls. 15, 16 of the Constitution.” It’s also why Texas law recognizes the Governor as “Commander-in-Chief of the military forces of the State.”

Abbott took to Twitter to praise the decision, saying, “The Texas National Guard are operating under my authority not Biden’s. They follow my command of no vaccine mandate.”

Emily Medeiros

Emily graduated from the University of Oklahoma majoring in Journalism. She is excited to use her research and writing skills to report on important issues around Texas.

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