The head of the Oklahoma National Guard told his troops in November that ― per an order from Gov. Kevin Stitt ― units under his jurisdiction would not enforce a mandate from Defense Secretary Lloyd Austin to be vaccinated against COVID-19.
The Defense Department’s response has been incredulous. The mandate’s a direct, lawful order, multiple senior leaders said.
In addition, the president has the authority to give state-status Guardsmen governing orders, Pentagon spokesman John Kirby told Military Times on Feb. 16. That includes vaccine compliance.
“Failure by a member to comply with deadlines and requirements can lead to prohibition on participation in drills, training, and other duty conducted under title 32 and will jeopardize the member’s status in the National Guard,” he added.
But National Guard troops not on active duty, known as Title 10 status, might not have to follow the mandate, calling into question how much power the Pentagon has to enforce its policies for roughly 1 million troops who spend most of their time off-duty.
Now the issue has come to a head. Multiple lawsuits, filed by governors who disagree with the mandate, will hash out who has the final say, They’re hoping to settle a long-running dispute about who, ultimately, sets standards and policies for the National Guard.
National Guard, state control
Questions about authority came up again, in December, when the department unveiled an updated policy governing affiliations with extremist ideology. The Pentagon said it applied to Guard members. The National Guard Bureau said it didn’t.
The truth was somewhere in the middle, but to understand the disagreement one must understand the Guard’s history.
In some ways, National Guard is almost a misnomer for a force that spends the majority of its time under a governor’s control. Founded as a network of state militias, the Army and Air National Guard have participated in conflicts more and more, up to and including the wars in Iraq and Afghanistan, where their operational tempo was practically indistinguishable from that of active duty units.
As a result, Guard organizations have sought increasingly more parity with the active duty component. In the past decade, the Army and Air Force stood up commissions studying the role of their National Guard components and whether they should be absorbed into the federally controlled Reserve organizations.
The answer was they should not.
“The Air National Guard, and the Army National Guard, fought so hard to be taken seriously as an interchangeable option to the active component, more so than even the Reserve component did,” Katherine Kuzminski, a senior fellow at the Center for a New American Security, told Military Times in a Jan. 24 interview.
“Certainly, this isn’t the Guard writ large, right?” she added. “This is the Guard, in some states, really undermining this credibility that they fought so hard for.”
But Guard leaders, and their advocates, don’t necessarily see it that way.
“Most of the rhetoric that you hear is coming from people who don’t necessarily have a clear understanding of the history of the country, or the National Guard, or why things are organized and certain activities are authorized under the different authorities,” retired Brig. Gen. Roy Robinson, president of the National Guard Association of the United States, told Military Times on Friday.
A key part of the Guard’s heritage is a state militia role. Troops serving on state active duty, or under Title 32 ― a federally funded, state-controlled status created to allow the Guard to keep its troops trained to a high readiness level without mobilizing them under a president’s orders ― are subject only to the orders of their state chain of command.
So when Stitt — the commander in chief of Oklahoma Guardsmen for all but maybe a handful of days a year — said the shot wasn’t mandatory, it became so.
“The sadder thing is that it’s the political nature of the position of [the adjutant general] versus, you know, a military commander within the the active duty components, that clearly report to the Pentagon,” Kuzminski said. “It was really good that it got to the point where [Defense Secretary Lloyd] Austin himself was the one who intervened and said, ‘No, this is for the vaccine standards ... this is applicable to everyone, and I have the authority and the ability to withhold pay.’ ”
In his responses, Austin has told governors that Title 32 status is subject to federal orders, and that refusal to get vaccinated could prohibit troops from participating in required drill weekends and training.
Presidential authority in the U.S. code requires that “all members of the Idaho Army and Air National Guard, regardless of duty status, must follow the directions of the Secretaries of the Army and the Air Force, respectively, regarding specific COVID-19 vaccine compliance deadlines and requirements,” he wrote in one of the letters.
Brig. Gen. Tommy Mancino, Oklahoma’s adjutant general, in December ordered unvaccinated Air Guardsmen to stay home from drill weekends, rather than risk not getting paid for their time.
Guardsmen who don’t show up to Title 32 drills and training don’t face immediate consequences, but they can have their federal status stripped eventually, preventing them from receiving any federal pay or benefits.
Mancino rejects the notion that following his governor’s order is a political act, regardless of whether Stitt’s motivations are political. He is simply following the letter of the law, he told Military Times on Jan. 25, and Title 32 is clear about who calls the shots and when.
“If Congress were to change the law, then I would comply,” he said.
How these conflicting orders will play out in a state like Oklahoma, where the governor has explicitly ordered the chain of command not to enforce the mandate, remains to be seen. And it may take many months to sort it all out, as Oklahoma, Texas and Alaska have sued DoD to exempt them from Austin’s order.
This presents a quandary that DoD has not been able to explain. For a service member on active duty, unit leaders have been ordered to report their unvaccinated troops, which can initiate an involuntary separation for those who continue to refuse.
But in the National Guard, when a chain of command has been told not to enforce, there is no immediate trigger ― no way for the federal government to know anyone is out of compliance, no way for the individual services to start separation proceedings, and no way for the Defense Financial Accounting Service to cut off pay.
One scenario is that the Army and Air Force could audit the medical records of certain state Guard organizations, looking for unvaccinated individuals.
The Air Force’s vaccine policy requires commanders to report up the chain whether their airmen are vaccinated, exempt, awaiting an exemption decision or in refusal.
Airmen who remain unvaccinated will be barred from participating in Title 32 activities and relegated to the Individual Ready Reserve, a status with no pay or benefits, according a memo from the Air Force secretary.
The Army hasn’t yet published guidance that would apply to its National Guardsmen, whose vaccination deadline is June 30.
More likely, perhaps, is that unvaccinated Guardsmen could fly under the radar until they inevitably get called up on Title 10 ― whether for a deployment or for mandatory training or professional education that, without it, could make them ineligible for a promotion and therefore ineligible to continue their service.
Another option would be for DoD to withhold state Guard funding, which would not target individuals, but could put pressure on leadership to comply. There’s also the possibility that not attending drill weekends, as in the case of Oklahoma’s Air Guardsmen, could eventually get troops bumped from service.
But the Pentagon has not presented any of those scenarios when asked by Military Times. Neither has it acknowledged that it could be months or years before they catch up to every soldier or airman out of compliance.
Rather, according to Kirby, DoD is working with the organizations responsible to execute policy to make sure that everything, eventually, is compliant.
“We recognized early on that the execution of these Department-wide policies in the Reserves, including the Guard, could carry with it some unique challenges,” referring to both the vaccine and extremism policies. “That is why the Secretary has stayed engaged with leadership in the Military Departments, Services and the National Guard Bureau, directing the development of appropriate implementation policies for their respective chains of command. With that, implementation of these policies then rests with the appropriate chains of command.”
The military functions on standards and policy, held together by a common understanding that they are necessary for good order and discipline, and that there will be consequences if they aren’t upheld. So what happens when a chain of command decides not to follow them?
The National Guard Bureau put out a memo in July clarifying that its troops are not beholden to a DoD instruction that prohibits a range of extremist activities, from recruiting for far-right hate groups to posting anti-government sentiment online.
The memo was a reaction to Colorado National Guard officer who filed a lawsuit after his chain of command disciplined him for participating in a non-violent Black Lives Matter rally while in a civilian status.
The lawsuit doesn’t argue that the policy shouldn’t apply to him when he’s not on Title 10 orders, but that it “is unconstitutional because it restricts my right to peacefully participate in Black Lives Matter and other protests when not on duty and not in uniform,” Capt. Alan Kennedy told Military Times in December.
But that memo opened another can of worms the DoD has not been able to explain away.
“We’re not aware of any concerns that have been expressed by the reserve component or the National Guard,” Pentagon spokesman John Kirby told Military Times on Dec. 21. " ... if you read the instruction, it very clearly relates to all uniformed personnel.”
For its part, the National Guard Bureau has refused to talk about why it put out the memo or whether it stands by the contents, as Kennedy’s lawsuit is ongoing.
Now, just because certain rules don’t directly apply to National Guard members does not mean that they can’t be held accountable for, say, not getting vaccinated, or for spending their Tuesday afternoons recruiting for a neo-Nazi group.
“All my career was in the National Guard, and if I found a bad actor, I crushed them, right?” Robinson said. “And there’s a whole lot of people out there that do the same thing.”
The National Guard might be able to do an even better job of monitoring something like extremism, Robinson said, because commanders and their troops are generally part of the same civilian community and spend decades working together, rather than the regular change-of-station moves on the active duty side.
“I think they all go for the same standards,” Robinson said. “I actually think that that’s the reason that you don’t see any more extremist related activities among members of the National Guard than you do in any of the other components in any of the services.”
While National Guard commanders might not use the Pentagon’s framework for investigating prohibited activities, they could order a security clearance review for a Guardsman they suspect of associating with extremist groups, for example.
“When you do the background clearance, when you see activities on any type of social media ... authorities in a state status have to have all the authority they need to immediately require an administrative review of that security clearance,” he said, and a failed security check could end a career, at least.
There’s also local law enforcement for any illegal activity, but not having to abide by DoD standards still leaves a bit of a loophole, where a commander could disregard any reports.
“We’re trying to prevent participation in bad behavior, right?” Kuzminski, the CNAS fellow. “But we can’t nail you for being in a Proud Boys Facebook group. But we know that if you’re in a Proud Boys Facebook group, you’re probably more likely to commit behavior that we’re trying to prevent. Right?”
That isn’t to say, however, that active duty commanders don’t ever drop the ball when it comes to investigating or disciplining prohibited activities, but it does present a bit of a gray area in the Guard, compared to a largely black-and-white policy for active duty troops.
“Over the course of my military life ― I’ve seen a lot of things that that were not necessarily, in my opinion, perfectly handled,” Robinson said. “But I will tell you, I think that a lot of that reflects the society that we serve. And I think it’s gotten significantly better. We may be as good as we’ve ever been, in terms of policing our own formations. And in some cases, I believe ― yeah, I think I think we’re better than some of our active component counterparts.”
The Pentagon has since acknowledged the limits of its power.
“Commanders and leaders at all levels should take immediate actions to address active participation in extremist activity in a manner consistent with the laws or ordinances of their State, Territory, or the District of Columbia, or the Uniform Code of Military Justice, as applicable,” Kirby said.
“Engaging in prohibited extremist activity will jeopardize a member’s status in the National Guard,” he added, though not necessarily because of a Pentagon policy.
One force, one fight?
These scenarios present multiple instances where active duty and National Guard troops are beholden, at least on paper, to different standards. They’re not the only instances: Guardsmen are not subject to the Uniform Code of Military Justice, which means that civilian authorities are expected to investigate and adjudicate any crimes committed while under a state-controlled status.
There is an Office of Complex Investigations where commanders can refer one of their troops if civilian authorities decline to pursue a sexual assault report, for example, but it still can’t bring charges, and it’s completely up to a commander whether to contact them.
“My understanding is that your authority is one of encouraging, cajoling, subtly hoping that they will do the right thing, but outside of giving them money, we don’t have any hook to get them to do what they should do,” Rep. Jackie Speier, D-Calif., told National Guard Bureau chief Army Gen. Dan Hokanson during a House Armed Services subcommittee hearing on Jan. 19.
And then there’s the issue of the Texas border mission, where thousands of soldiers have been deployed alongside the Texas Department of Public Safety. Additionally, South Dakota Gov. Kristi Noem in 2021 pledged to send some of her troops to back up the Texas National Guard in its state mission, using funds from a Republican donor.
All of this raises a question: if National Guard members aren’t subject to the orders of defense secretary, and therefore the standards of conduct and readiness required for active duty troops, and they can be mobilized on behalf of a state governor rather than the United States ― does it make sense that they all wear U.S. Air Force or U.S. Army tapes on their uniforms?
To the general public, there is no distinction. In practice, there are soldiers and airmen who are subject to different standards at different times, if their governors choose to diverge from Pentagon policy.
“So I hear exactly what you’re saying, and it makes perfectly sound, logical thought,” Robinson, president of NGAUS, said. “But I’ve got to go back and remind you that the primary mission of the Army and Air National Guard is ― established over 300 years ago ― is that they are the primary combat reserve of the Army and the primary combat reserve of the Air Force.”
Which is to say, according to Robinson, that the National part of the National Guard takes precedence, even if they spend most of their time in a state-controlled capacity.
Exactly, Kuzminski, the CNAS fellow, said. If Guard troops are primarily thought of as a federal force, it would make sense for them to always maintain federal standards.
“The National Guard has been ... used in an unprecedented fashion for the past 20-plus years, and we’ve supported the active duty in two wars, and we continue to do that,” Mancino said. “And yes, I believe that means it may necessitate Congress to look at how we’re structured, right? And to potentially make changes.”
And the controversies of the last few months, along with the end of the war in Afghanistan, might signal a return to that more traditional focus on state activities.
So how does DoD respond to these disparities, if at all? In some ways, the law says that they were always there, but in practice, Guard leaders can of course implement the federal government’s policies. That’s how 46 of the Guard’s 54 states and territories have handled the vaccine mandate so far.
For the others, the only option would be for Congress to step in and amend the law. It might look something like language giving a governor the power to call up troops for state missions, but requiring that troops in any status comply with federal standards.
“The balance between the federal roles and the state roles, and which govern when, is one that is rooted in the Constitution. But also, some of it’s in the agreement that Congress established with the states under Title 32,” Mancino said. “Far be it from me to tell Congress whether it can or can’t do something, but it would not surprise me if maybe many members of Congress want to take a look at this .. If asked my military opinion, I’ll give one to the Congress ... but I don’t make any political statement about whether that’s a good idea or not.”
Reached for comment by Military Times, a Senate aide said there were no hearings or legislative proposals on the horizon that would call into question the current balance of powers between the states and the federal government.
The Supreme Court might be another forum for change.
“I have a feeling there’s some maneuvering behind the scenes to make this a Supreme Court case,” Kuzminski said of the states’ vaccine lawsuits. “But it’ll rely on the strength of the case, which is that your risk of getting COVID is higher in military service.”
And that could set a precedent for whether the federal government gets to enforce the readiness standards of state-controlled National Guardsmen.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members. Follow on Twitter @Meghann_MT