Don’t tread on the Texas National Guard. That seems to be the message coming from Attorney General Ken Paxton this week. Paxton has filed a lawsuit challenging the Biden administration’s mandate that all military members (including the National Guard) be vaccinated. Unfortunately, challenges like these haven’t been doing well in the lower courts and even the Supreme Court seems hesitant to step in thus far. A federal judge just shot down a similar challenge in Oklahoma last week and others have followed a similar pattern. But the situation in Texas is serious and may require immediate attention. The number of National Guard members who have yet to be vaccinated there is alarmingly high and losing that many troops in one sweeping action would likely cripple the Guard. (Washington Times)

Texas officials indicated Tuesday that thousands of National Guard members are refusing COVID-19 vaccines in the latest challenge against a Biden administration order that requires all members of the military to get one.

A lawsuit filed by Texas Attorney General Ken Paxton comes a week after a federal judge rejected a similar challenge brought by Oklahoma’s governor, amid growing Republican opposition to the vaccination mandate for Guard members.

Texas has more than 20,000 National Guard members, the largest contingent of any state. About 40% of its Army National Guard are currently refusing to receive the COVID-19 vaccination “for either religious accommodation needs or otherwise,” according to the lawsuit filed in a federal court in East Texas.

If 40% of the state’s National Guard members are unvaccinated, that works out to roughly 8,000 people. Would the Department of Defense really allow that many uniformed troops to be given the boot based on nothing more than an executive order? The world has gone crazy enough lately that I suppose it’s possible.

Most of the unvaccinated Guardsmen are awaiting answers on requests they have filed for exemptions. Unfortunately, almost no exemptions are being approved so far, though there may be a few exceptions cropping up.

In the linked article, Ed Morrissey was talking about a case involving 35 Navy SEALs who found a judge willing to side with them in their efforts to gain a religious exemption to the vaccine mandate. But that was a very limited ruling and the government retains the right to contest it. I’m still not very confident in how successful these challenges will be in the end. There is certainly an argument to be made that the mandate is being applied unevenly, particularly when “administrative” and medical exemptions are being granted while religious exemptions are not.

But I can also see how the courts would view the religious exemption requests as a trap door that could expand wildly. The troops seeking these exemptions generally fall into two categories. One group offers a general belief that “God doesn’t want me to take the vaccine.” The other gets more specific, citing the potential use of fetal materials in the vaccine development process and turning the debate into a question about abortion. No matter which route is taken, if the courts allow one group to use that rationale, then anyone could do the same, regardless of their sincerity or depth of their faith. At that point, the mandate becomes largely a toothless tiger.

Because of the inherently limited constitutional rights of military members as compared to their civilian counterparts, getting around the vaccine mandate was always going to be more difficult for those in uniform. Texas may produce a few surprises on this front, but none of this will be settled until the Supreme Court gets a bite at the apple.