Court Drop-Kicks Oklahoma Guard Anti-Vax Suit Because BRO, DO YOU EVEN LAW?
Is it cool when a federal judge says your "arguments both misconceive and trivialize the Fourth Amendment"? Asking for the state of Oklahoma, which got whacked last night by a federal judge over its objection to a vaccine mandate for its National Guard troops.
President Joe Biden's vaccine mandate for the federal work force is headed for the Supreme Court, but challenges to his military mandate appear to be striking out on all fronts, as Judge Stephen Friot of the Western District of Oklahoma joined Judge Colleen Kollar-Kotelly of the DC district court in dropkicking the overhyped claims of active military members that Uncle Joe is forcing them into a "Hobson's choice" between their jobs and their bodily integrity.
On December 2, the state of Oklahoma raced into court demanding that the court restrain the federal vaccine mandate generally. It was not, to all appearances, a well-argued complaint. But what it lacked in competence, it more than made up for in volume.
"The President unilaterally has issued this diktat without any semblance of a congressional authorization," it screeched, vomiting out a litany of supposed illegality: "The federal government, it is clear, is without power to invade the police powers of the States concerning health, safety, and morals. In addition, the separation of powers and the non-delegation principle preclude this vaccine mandate both because it cannot be the product of a statute guided by an intelligible principle and, more broadly, because this vaccine mandate amounts to lawmaking, which rests within the exclusive preserve of Congress."
Which is all well and good, but unless you're getting a Justice Gorsuch or Alito to fill in those anger Mad Libs, you'll probably have to argue with more specificity than that to get relief from a trial judge.
As Judge Friot noted, the Executive Order the State inveighed against had nothing to do with the military, active duty or reserve. So on Dec. 27, Oklahoma amended its complaint to accuse the federal government of "trying to disarm the State of Oklahoma from protecting itself, its territory, and its citizens" on the theory that all the Guardsmen would refuse to get the shots, leaving Oklahoma unprotected from the rapacious overtures of its Texas neighbors. Or ... well, Oklahoma doesn't say who it needs protecting from, but that's the least of the problem here, as the court notes.
In fact, the military routinely requires its members to undergo vaccinations, and has since the republic was founded.
The COVID vaccination mandate should be understood against the backdrop of other military immunization mandates–which date back as far as General George Washington’s mandate that troops in the Continental Army be inoculated against smallpox. Nine vaccinations (now ten, with the COVID vaccination mandate) are required for all service members. This includes statutorily-designated reserve component service members such as members of the Guard. And as Secretary [of Defense Lloyd] Austin made clear in his August 24 memorandum, doc. no. 26-2, the entire gamut of exemptions potentially applicable to other vaccinations may be invoked with respect to the COVID vaccination mandate.
Not for nothin', but that Revolutionary War smallpox vaccine wasn't FDA approved either — no, not even under an emergency use authorization.
And you can miss Judge Friot with that bullshit about the state of Oklahoma needing to protect its citizens from the vaccine, because the mandate "undermines the laws, public policy, dignity, and interests of the State of Oklahoma in governing the field of public health, including vaccinations."
Noting that "The State of Oklahoma has not shown any federal action that interferes with its exercise of 'the power to create and enforce a legal code,'" the court writes:
COVID-19 has killed over 800,000 Americans. Among active-duty service members, there have been more than 209,000 new and repeat cases of COVID. Since July 2021, active-duty service members who are not fully vaccinated have had a 14.6-fold increased risk of hospitalization due to COVID infection. According to the Oklahoma State Department of Health, more than 689,000 cases of COVID have been diagnosed in Oklahoma. Oklahoma’s cumulative hospitalization rate for COVID-19 amounts to nearly 1 percent of the State’s population. More than 11,000 Oklahomans have died from COVID.
Well, when you put it like that ...
Aside from preposterous constitutional arguments, specious claims about the safety and efficacy of the vaccine, and hyperventilating about the dangers to the Oklahoma if too many troops quit the service rather than get jabbed, the state argument rested largely on a claim that the secretary of Defense is not the boss of Guard troops. The court rejects this in its entirety:
The upshot of all this is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions.
TL, DR? Get the hell out of here with your state-sponsored anti-vax tantrum. As for the individual Guardsmen who relied on the state's appallingly bad legal advice, particularly those who attempted to sign onto this suit as anonymous plaintiffs, the court "strongly urges" the DOD to exercise forbearance against "the individual non-compliant Guard members [who] did not have the benefit of well-informed leadership at the highest level of the Oklahoma Guard."
[State of Oklahoma v. Biden, Docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.