The officials insist that Mr. Stitt has no legal standing to obviate the mandate, though experts on the obscure laws governing the Guard disagree. They note that unless federally deployed, National Guard members are under the jurisdiction of the governor of their state and therefore not subject to federal mandates. “Guard members can only serve one boss at a time,” said John Goheen, a spokesman for the National Guard Association of the United States.
The Pentagon is not without redress. It could deny funding to state units or impede the promotions of Guard members who refuse to get vaccinated. Officials said Wednesday that Guard members who refused to be vaccinated also could face dismissal, just as with active duty troops.
“Oklahoma may be able to take this step as a legal matter, but there are definitely things the federal government can do in response that might make it a painful Pyrrhic victory,” said Eugene Fidell, an adjunct professor of law at the New York University Law School. “The governor and state adjutant general thus might find themselves commanding some very unhappy personnel.”
The Pentagon is bracing for other states to follow Oklahoma’s lead. So far none have, but many are believed to be closely watching the situation, which could become the subject of lawsuits. “This could be contagious,” Mr. Fidell said.
National Guard troops have been caught in the political cross hairs over the years, including in 2018, when several governors said they would withhold or recall their troops from the border with Mexico as the Trump administration separated adults who illegally crossed into the United States from their children. In 1986, several governors balked at sending Guard troops for maneuvers in Honduras ordered by President Ronald Reagan.