Null and void, but still a headache: Pentagon legal woes over COVID vaccine mandate persist

At the height of the global pandemic, the Pentagon decreed in August 2021 that all U.S. troops must receive the COVID-19 vaccine, and then launched a logistical push to get the vaccination for every military member stationed around the world.

Last December, amid heightened arguments over vaccine mandates and the rights of individuals, Congress passed and President Biden signed into law a defense spending bill that rescinded that mandate and forced defense officials to take the rare step, a seemingly ironclad, military-wide mandate to undo.

And all of that was maybe the easy part.

The end of the military’s coronavirus mandate has triggered complex legal questions for the Department of Defense, troops in every military service, legal scholars and attorneys on both sides of the vaccine debate. Chief among them is precisely how to punish – or not – the military personnel who refused to be shot and, the Pentagon argues, refused to comply with the “lawful order” issued by Mr. Biden, Secretary of Defense Lloyd Austin and Officers were enacted up and down the military chain of command.

Pentagon officials say they are still reviewing cases of service members who have refused the vaccine on a case-by-case basis. However, some critics say this approach creates even more problems and could lead to a review process ensuring the mandate will be a headache for the military for years to come.

“It’s a total mess,” said Sean Timmons, a Houston attorney at law firm Tully Rinckey PLLC who has represented military personnel who have challenged the vaccination mandate. “Each branch and service – it’s at their discretion how they handle each individual case, almost on a case-by-case basis. That is problematic.”

Mr Timmons said the military was wary of releasing those who refuse to vaccinate without any discipline.

“It made a lot of commanders very angry that people didn’t just line up,” he said.

Critics of the mandate, including powerful Republicans in Congress, say the military should simply abandon its review process since the policy itself has been revoked. They say the Department of Defense should immediately reinstate the more than 8,000 soldiers who were fired for not vaccinating, with back pay, and remove all penalties associated with those cases.

But the Department of Defense says it’s not that simple. And some legal analysts agree.

They argue that the Pentagon is playing with fire by allowing vaccinators to escape without discipline, and warn that such a move could destroy basic military principles by signaling troops they can refuse orders that may change in the future could change in their favor.

“Some might understandably argue that ordering the vaccination mandate was unwise and unnecessary. Accordingly, they might conclude that no one should be penalized for disobeying an unwise and unnecessary order that Congress has now blocked. That seems to miss the point,” said retired Air Force Major General Charles J. Dunlap Jr., executive director of the Center for Law, Ethics and National Security at Duke University. “The order was lawful when issued and military personnel were obliged to obey it.”

He added: “No military – or any society – can condone illegality on speculation that the law may be changed in the future.

The Pentagon must ask itself whether it can now trust those who have refused to be vaccinated to promptly comply with any legitimate orders they may receive in the future. Or would commanders still have to expect that defiers would filter legitimate orders through their personal beliefs or philosophy before deciding to carry them out? Can a military really operate effectively this way?”

Technically, soldiers are not penalized for not getting vaccinated. Rather, they could face disciplinary action if they disobeyed their commanders’ orders to get the shot.

That might seem like a distinction without a difference, but it’s an important detail. For example, many troops submitted formal requests for religious or medical waivers to avoid the vaccine. If requests for waivers, appeals or other technical steps were still being processed when the mandate was formally lifted in January, the service member would likely not be penalized because they had followed the correct procedure and had not exhausted the avenues to challenge the order.

Other troops whose waiver requests were denied and who still refused to be vaccinated could be convicted of disobeying lawful orders.

Other questions about “good order and discipline” could concern individual cases. For example, a service member may have encouraged fellow officers, Sailors, Airmen, or Marines to also refuse vaccination, which could be viewed as an attempt to undermine a commander’s authority, thereby undermining discipline in a unit.

It’s unclear what that disciplinary action might be, and exactly what scenarios would require punishment. Officials stressed that cases would have to be assessed individually.

“They review the cases because … they [disobeyed] a lawful order,” Undersecretary for Personnel and Preparedness Gilbert Cisneros said at a House hearing last month. “To maintain good order and discipline, it is very important that our service workers leave and follow instructions when they are lawful. And there were thousands who didn’t. And so the services go through a process to review these cases to determine what needs to be done.”

Army, Navy and Air Force officials echoed those comments and vowed to review each case.

Some Republicans say it’s a waste of time.

“What’s the point? If we revoke the mandate, what’s the point of continuing to review the cases?” Rep. Jim Banks, the Indiana Republican who chairs the House Armed Services Subcommittee on Military Personnel, said at the panel’s recent hearing on the subject.

Mr Banks took aim at the “double standards and the message you are sending to our troops – repeal the policy and still punish them for not taking the vaccine”.

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