Null and void, but still causing headaches: Pentagon’s legal woes over COVID vaccine mandate persist

At the height of the global pandemic, the Pentagon in August 2021 decreed that all U.S. troops must get the COVID-19 vaccine, then launched a logistical push to get the shot to every service member stationed anywhere in the world.

Last December, amid heightened clashes over the vaccine mandates and individual rights, Congress passed and President Biden signed a defense spending bill repealing that mandate, forcing defense officials to take the rare step of rolling back a seemingly iron-clad, military-wide order.

And all of that may have been the easy part.

The end of the military’s coronavirus mandate has sparked complex legal questions for the Defense Department, troops across each military service, legal scholars, and attorneys on both sides of the vaccine debate. Chief among them is exactly how to punish — or not — the service members who refused the shot and, as the Pentagon argues, refused to follow the “lawful order” handed down by Mr. Biden, Defense Secretary Lloyd Austin and officers up and down the military’s chain of command.

Pentagon officials say they’re still reviewing on a case-by-case basis instances of service members who declined the vaccine. But some critics say that approach creates even more problems and could result in a review process that ensures the mandate will be a headache for the military for years to come.

“It’s a total mess,” said Sean Timmons, a Houston attorney with the firm Tully Rinckey PLLC, who has represented military personnel challenging the vaccine mandate. “Each branch and service — it’s up to its discretion to decide how to handle each individual case, almost on a case-by-case basis. That’s problematic.”

Mr. Timmons said the military is wary of letting vaccine refusers off without any sort of discipline.

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

Mandate critics, including powerful Republicans in Congress, say the military should simply abandon its review process, given the fact that the policy itself has been revoked. They say the Defense Department should immediately reinstate with back pay the more than 8,000 troops who were kicked out for not getting vaccinated and erase any punishment associated with those cases.

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

They argue that the Pentagon would be playing with fire by letting vaccine refusers escape without discipline, warning that such a step could chip away at core military principles by signaling to troops that they can refuse orders that might change in their favor in the future.

“Some might understandably contend that the vaccine mandate order 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. This seems to miss the point,” said retired Air Force Maj. Gen. Charles J. Dunlap Jr., executive director of the Center on Law, Ethics and National Security at Duke University. “The order was lawful when issued, and military members had an obligation to obey it.”

He added, “No military — or society — can countenance unlawfulness based on speculation that the law might be changed in the future.

The Pentagon needs to ask itself whether it could now trust those who refused the vaccination to nevertheless immediately comply with all lawful orders they may receive in the future. Or would commanders still have to expect that refusers would filter lawful orders through their personal beliefs or philosophy before deciding to comply? Can a military really effectively operate that way?”

Technically speaking, service members won’t be punished for failing to get vaccinated. Rather, they could face discipline for refusing their commanders’ order to get the shot.

That may 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 getting the vaccine. If waiver requests, appeals or other technical steps were still being processed when the mandate was formally lifted in January, the service member likely wouldn’t face punishment, since they followed the correct procedure and hadn’t exhausted options for challenging the order.

Other troops whose waiver requests were denied and who still refused to get vaccinated could be judged to have disobeyed lawful orders.

Other questions around “good order and discipline” could affect individual cases. For example, a service member may have encouraged fellow soldiers, sailors, airmen or Marines to also refuse vaccination, which could be viewed as an effort to undermine a commander’s authority and in the process erode discipline in a unit.

It’s unclear what that disciplinary action may be and exactly which scenarios require punishment. Officials stressed that the cases must be evaluated individually.

“They’re reviewing the cases because … they [disobeyed] a lawful order,” Under Secretary of Defense for Personnel and Readiness Gilbert Cisneros told a House hearing last month. “In order to maintain good order and discipline, it’s very important that our service members go and follow orders when they are lawful. And there were thousands that did not. And so the services are going through a process to review those cases to determine what needs to be done.”

Officials with the Army, Navy and Air Force echoed those comments and pledged to review each instance.

Some Republicans say that’s a waste of time.

“What’s the point? If we rescinded 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 issue.

Mr. Banks took aim at the “double standard and message that you’re sending to our troops — rescinding the policy and still punishing them for not taking the vaccine.”