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Gov. Abbott Sues WH, Tells TX Natl Guard Biden’s Not Their ‘Commander-In-Chief’

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OPINION: This article may contain commentary which reflects the author's opinion.


The battle lines have been drawn and President Joe Biden is now squaring off with Texas Gov. Greg Abbott.

The Texas governor has sued the Biden administration as around 40 percent of his state’s National Guard has not gotten the COVID-19 vaccine mandated by the federal government, The Daily Mail reported.

Abbott filed suit Tuesday in Texas, asking a federal judge to overturn Biden’s vaccine requirement, in a filing that repeatedly invokes Abbott’s own authority as commander in chief of the guard, which is subject to complex jurisdiction.

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Under overlapping statutes, state national guards remain under the command of governors except when they are called up for federal by the president. Title 10 of the U.S. Code applies to active duty military, while Title 32 applies to the Guard. 

The deadline for troops to get vaccinated was December 31st. According to Abbott’s suit, 40 percent of members of the Texas Army National Guard under his command are refusing to get the shot for religious or other reasons. 

“Defendants’ intrusion into the discretion and scope of Title 32 commanders is contrary to the balance of power between federal and state officials set out by the U.S. Constitution and federal law,” the Texas governor said in the lawsuit.

“It is unlawful for Defendants to attempt to override the Governor’s authority to govern his troops, and then leave him to deal with the harms that they leave in their wake,” he said.

The lawsuit cites the constitution of the state of Texas and says that the defendants’ actions “directly infringe on Governor Abbott’s authority as commander-in-chief and on Texas’s sovereignty, and so harm Governor Abbott and Texas.”

If the courts rule in favor of the Texas governor it would be another blow to Biden’s vaccine mandate on the military which just suffered a tremendous setback.

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The most recent example of this happened on Monday when a federal judge issued a temporary injunction that stopped the president’s mandate on 35 Navy SEALS who sued the administration, The Washington Post reported.

U.S. District Judge Reed O’Connor said, “Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.”

“The Covid-19 pandemic provides the government no license to abrogate those freedoms. There is no Covid-19 exception to the First Amendment. There is no military exclusion from our Constitution. This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” the judge said in his decision.

But he said that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

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Pentagon spokesman John Kirby said Monday night that defense officials were aware of the injunction and reviewing it.

The troops — a group that included Navy SEALs and other members of Naval Special Warfare Command — filed suit against President Biden, Defense Secretary Lloyd Austin, Navy Secretary Carlos Del Toro, and the Defense Department to challenge the Navy’s vaccination requirement in November. The troops cited Christian beliefs that they should not take a vaccine developed from aborted fetal cell lines and saw a modification of their bodies as an “affront to their Creator.” Many Christians have sought vaccination, with Pope Francis urging Catholics to do so on humanitarian grounds.

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The suit was filed by First Liberty Institute, a nonprofit that specializes in defending religious liberty. Michael Berry, a lawyer for the institute, said in a phone interview that the ruling “sends a clear message to the Biden administration, to the Pentagon and to the Navy that our service members do not give up their religious freedom when they serve their country.”

The judge said that the Navy does have a process by which a member can request a religious exemption but that “by all accounts, it is theater.”

“The Navy has not granted a religious exemption to any vaccine in recent memory,” he said. “It merely rubber stamps each denial.”

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