OKLAHOMA CITY — Oklahoma’s governor remains at odds with the Pentagon after vowing to take no administrative or legal action against hundreds of National Guardsman who refuse the COVID-19 vaccine.

Gov. Kevin Stitt’s edict challenged U.S. Secretary of Defense Lloyd Austin’s requirement that all military troops be vaccinated or face dismissal. It comes as nearly 10% — about 800 — of the state’s National Guard personnel have said they either have not or do not plan to get vaccinated ahead of a Department of Defense deadline.

Stitt’s office doubled down on that stance Tuesday, noting that the governor ordered the change that was carried out in a memo released last week by Brig. Gen. Thomas Mancino, newly appointed to lead the Oklahoma National Guard. Stitt’s office also noted that the Oklahoma National Guard is apolitical.

“Brig. Gen. Mancino carried out the governor’s order, it was not his independent action,” said Carly Atchison, a Stitt spokeswoman.

She said that the federal government can establish training standards and policies, but has no way to enforce them until the National Guard is placed on federal active duty. But the moment it is placed on federal active duty, the Guard will fall under the command of the president, and Guardsman will be subject to the COVID-19 vaccine mandate. Until then, Stitt remains the Guard’s commander-in-chief, not the president, Atchison said.

Pentagon spokesman John Kirby said Monday afternoon during a press briefing that Austin will “respond appropriately” to Stitt. He said he didn’t want to “hypothesize” about potential outcomes.

“I'll let the Adjutant General speak for his memo,” Kirby said, referring to Mancino. “The Secretary of Defense has the authority to require these vaccines for all members of the force, including the National Guard, and as I said, even in a Title 32 status, because when they're called up for their monthly training, they're still federally funded. So, he has those authorities. And he believes – and this is a larger point – that a vaccinated force is a more ready force.”

He also said it is a “lawful order” for National Guardsmen to receive the COVID vaccine, and refusing to get vaccinated absent an approved exemption “puts them in the same potential as active-duty members who refuse the vaccine,” Kirby said. He added, “It's a lawful order, and they are subject to that order.”

Under Title 32, the National Guard is a state-controlled, federally-funded entity that takes orders from the governor, according to a statement from the Oklahoma National Guard. Under Title 10, when called up by the president, the Guard takes its orders from federal authorities.

“Failing to follow the governor’s lawful orders while on Title 32 would be both illegal, unethical, and against our sworn oaths. Nothing in this order prevents anyone from taking the vaccine,” Mancino said in a statement over the weekend. “Also, nothing in his order eliminates the federal requirement. The governor is hoping for federal relief from Secretary of Defense Lloyd Austin and in the interim has granted state relief from this requirement.”

John Goheen, a spokesman for the National Guard Association of the United States, said though uncommon, disputes have previously erupted between governors and federal authorities over National Guard-related issues..

“It’s not the first time,” Goheen said. “It probably won’t be the last time that there’s a disagreement between people who in the end want the best for the force, want the best in terms of readiness and quality of life for the force.”

In this case, he said, both Stitt and Austin seem to be standing on their principles.

He said Democratic governors previously disagreed with former President Ronald Reagan’s decision to send National Guard troops to places like Honduras to train. The U.S. Supreme Court later ruled that the president had every right to send the Minnesota Guard to Central America. During the Truman administration, not every state immediately integrated forces even after the president integrated the military. And a few years ago, some National Guards disagreed with offering benefits to same sex couples.

Typically, the federal rules prevail when there are disputes between a governor and the Department of Defense, Goheen said.

States usually get about 95% of their National Guard funding from the federal government.

He said it wouldn’t be impossible for Oklahoma to lose its federal military funding if it fails to comply with the federal vaccine mandate, but said everybody hopes that this gets resolved.

“I think he is playing politics with operational readiness, (the) combat readiness of our troops in the state of Oklahoma,” said state Rep. Andy Fugate, D-Oklahoma City. “And he’s doing it against the judgment of those who are on the ground, who are best informed about the situation. The governor continues to believe that he is the smartest person in every single room, and he’s not.”

Janelle Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. Reach her at jstecklein@cnhinews.com.

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