Abbott v. Biden
| Docket Number | 22-40399 |
| Decision Date | 12 June 2023 |
| Parties | Greg ABBOTT, in his official capacity as Governor of the State of Texas, Plaintiff—Appellant, v. Joseph R. BIDEN, in his official capacity as President of the United States; Department of Defense; Lloyd Austin, Secretary, U.S. Department of Defense; Department of the Air Force; Frank Kendall, III, in his official capacity as Secretary of the Air Force; Department of the Army; Christine Wormuth, in her official capacity as Secretary of the Army, Defendants—Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 6:22-CV-3, John Campbell Barker, U.S. District Judge
Ryan Baasch (argued), Office of the Texas Attorney General, Solicitor General Division, Austin, TX, Christopher D. Hilton, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, Leif A. Olson, Office of the Attorney General, Austin, TX, for Plaintiff—Appellant.
Casen Ross, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Zachary A. Avallone, Sarah Jane Clark (argued), Abby Christine Wright, U.S. Department of Justice, Civil Division, Washington, DC, James Garland Gillingham, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX, for Defendants—Appellees.
Before Stewart, Willett, and Oldham, Circuit Judges.
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The President of the United States asserts the power to punish members of the Texas National Guard who have not been called into national service. The Constitution and laws of the United States, however, deny him that power.
At the Founding, few issues garnered more attention and debate than did the Constitution's allocation of power over the military. The Federalists and Anti-Federalists feared that a standing army would lead ineluctably to tyranny. The Founders also recognized, however, that our then-fledgling Nation needed a strong national defense. The Constitution's solution to this dilemma is embodied in its Militia Clauses. Those clauses reflect a delicate compromise that gives the States power over their respective militias—subject to the President's power to call those militias into national service when necessary.
In this case, President Biden imposed and then repealed a mandate requiring State militiamen to take the COVID-19 vaccine. And now that the President has rescinded the vaccine requirement, he wants to retain the power to punish militia members who refused to get the shots while the mandate was in effect—all without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.
It's also important to clarify at the outset what this case is not about. This is not a case about "military readiness." The Government repeatedly emphasizes that our national government has set military readiness standards since the Founding. That's equal parts true and irrelevant. It's of course true, for example, that Congress in 1792 adopted Baron von Steuben's "Rules of Discipline," which included a host of military instructions intended to make militias ready for national service if and when called to perform it. But it's equally true that the States—and the States alone—retained power to implement those readiness requirements. And crucially, the States—and the States alone—retained power to punish members of their militias who fell short of those standards. Thus, while it appears common ground between the parties that the President can impose vaccine requirements as part of the national effort to ensure military readiness, only the States can punish non-federalized Guardsmen who fall short of that standard. That's especially true in this case because the Secretary of Defense conceded that COVID shots are no longer necessary to military readiness when he repealed the mandate.
The relationship among the National Guard, the States, and the federal military is complex. See Perpich v. Dep't of Def., 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). But in broad strokes, the National Guard includes two "overlapping but distinct organizations"—the National Guards of the various States and the National Guard of the United States. Id. at 345, 110 S.Ct. 2418. All who enlist in a State's National Guard must simultaneously enlist in the National Guard of the United States, ibid., which is a "reserve component[ ] of the armed forces," 10 U.S.C. § 10101. 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." Holdiness v. Stroud, 808 F.2d 417, 421 (5th Cir. 1987); see also, e.g., Blackwell v. United States, 321 F.2d 96, 98 (5th Cir. 1963) ().
The State of Texas, for example, trains members of the Texas National Guard (which we refer to as the "Texas militia" or "Texas Guard") and appoints its officers. U.S. CONST. art. I, § 8, cl. 15; TEX. GOV'T CODE § 437.003(c); 32 U.S.C. §§ 501-02. 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.). See 38 U.S.C. § 4303(15); TEX. GOV'T CODE §§ 437.004-.005. 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." Lipscomb v. FLRA, 333 F.3d 611, 613 (5th Cir. 2003).1 It's also why Texas law recognizes the Governor as "Commander-in-Chief of the military forces of the State." TEX. CONST. art. IV, § 7; see also TEX. GOV'T CODE § 437.001(14).
The President of the United States is Commander in Chief of the United States Armed Forces at all times. He's Commander in Chief of the National Guard of the United States at all times. But he's Commander in Chief of the State Guards only at limited times. Specifically, the President becomes "Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States." U.S. CONST. art. II, § 2, cl. 1 (emphasis added); see also TEX. CONST. art. IV, § 7 . The Constitution in turn assigns Congress the power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. CONST. art. I, § 8, cl. 15. And when the President calls the State Guards into the service of the United States—colloquially termed "federalizing"—those Guardsmen temporarily become part of the Army and Air Force. See 10 U.S.C. §§ 10106, 10112.
On August 24, 2021, the Secretary of Defense ordered all members of the military to take COVID vaccines. "[W]ith the support of the President," Secretary of Defense Lloyd Austin "direct[ed] the Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard." Memorandum, Secretary of Defense, Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members (Aug. 24, 2021) (emphasis added). Secretary Austin explained that "[t]o defend this Nation, we need a healthy and ready force." Ibid.2
The next day, on August 25, 2021, Texas Governor Greg Abbott issued Executive Order GA-39. He commanded that "on a statewide basis . . . [n]o governmental entity can compel any individual to receive a COVID-19 vaccine." Under his power as Commander in Chief of the State's military forces, Governor Abbott later clarified that GA-39 applies to all members of Texas's militia, including the Texas National Guard.
On November 30, 2021, Secretary Austin directed the Army and Air Force to create "policies and implementation guidance to address the failure to maintain this military medical readiness requirement by members of the non-federalized National Guard who remain unvaccinated." Memorandum, Secretary of Defense, Coronavirus Disease 2019 Vaccination for Members of the National Guard and the Ready Reserve (Nov. 30, 2021). The Government eventually threatened five consequences against noncompliant Guardsmen and States (collectively, "the enforcement measures"):
Governor Abbott filed suit on January 4, 2022.3 He alleged that the military vaccine mandate is arbitrary and capricious within the meaning of the Administrative Procedure Act ("APA"). He also alleged that all but one of the Government's planned enforcement measures violate the Constitution. For relief, Governor Abbott sought an order declaring the vaccination requirement and the challenged enforcement measures unlawful, setting them aside, and enjoining their enforcement as to non-federalized Guardsmen. He also requested costs, attorneys' fees, and any other relief the court deems proper.
Governor Abbott then moved for an order preliminarily enjoining the defendants from enforcing the vaccine mandate against members of the Texas militia not in federal service. The district court denied the motion. The Governor...
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