Can President Biden Legitimately Order Military Members To Take COVID-19 Vaccine?

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Camp Foster, Japan – January 27, 2021: Hospitalman Dillon Bothwell, left, prepares syringes while Hospitalman Apprentice Samantha Iglesias-Martinez, right, both assigned to Naval Hospital Okinawa, delivers the Moderna COVID-19 vaccine. (Navy photo by MCS 1st Class David R. Krigbaum)

Posted by Sean Timmons, Esq.

The short answer is yes: The President of the United States can order military personnel to take the COVID-19 vaccine. Don’t let secondhand information and basic Google searches fool you. Many military personnel have become misguided by what military personnel refer to as “barracks attorneys” who claim to have specialized experience or knowledge in a field of law after hearing rumors, rumors, or speculation. This is not to say that you cannot take certain steps to avoid receiving the vaccine, but these are just marginal conditions that you must work for of your own accord. Regardless of what others have said or claimed to be legal, the president can order military personnel to take the COVID-19 vaccine and refusal to comply could endanger your military career.

It is not the first time that there has been talk of compulsory vaccination in the military. Around the turn of the century until 2004, members of the military had to take the anthrax vaccine, which was very unpopular. The courts eventually ruled that due to issues with the Food and Drug Administration (FDA) approval process, members of the military could not be forced to take the vaccine, as it was found that federal law provisions regarding general safety and development protocols were invalid Vaccine; However, the court found that troops could not be compelled by the FDA and were not required to take the vaccine by court order “unless the President orders them to”.

This came as a surprise to many as the federal courts are reluctant to interfere in military matters relating to presidential instructions to members of the armed forces. The United States Supreme Court has used the “political question” doctrine to generally stay out of Article II matters involving the military and military affairs, with few exceptions which are relatively inapplicable to the prescription of vaccinations. Article II of the United States Constitution covers the responsibilities and duties of the President of the United States and gives the President an extremely wide margin of discretion as the sole “Commander in Chief”. With the courts unwilling to repeal a directive of the President in his exclusive constitutional authority as sole Commander-in-Chief; the legality of such a directive is relatively straightforward. That is not to say that such an order is politically well received, but from a technical and legal point of view, such a mandate would be entirely legal and enforceable.

So if President Biden ordered military personnel to take the vaccine, failure to comply would be treated as a criminal act and could lead to prosecution, imprisonment and premature separation from the military in the form of a dishonorable discharge. Officials could also be held liable for a violation of Article 133; the catch-all rule, which forbids any conduct that is considered “conduct inappropriate to an officer and gentleman”. This is the worst-case scenario for anyone on active duty in the military when faced with a “failure to comply with a lawful order” type of prosecution.

As of May 2021, much of the uniformed military will remain unvaccinated. It has been suggested by many that the nature of the “emergency approval” of the vaccine and the relative rush to the market make it too risky for their individual tastes to take. This is an understandable and rational concern; However, when a member joins the military, they sign a contract with a provision that basically states that the military can “do what is in the best interests of the service” at any time. This means that the military leaders can lawfully order you in situations where there could be an extreme risk to your health and safety. So whether it is to command you into a dangerous fight or to require certain vaccinations, in most cases you have the authority to do so without legal consequence.

As mentioned earlier, there are certain exemptions and procedures you can go through to waive a vaccination without affecting your career. Individuals who have a good faith religious justification for not being vaccinated may be able to apply for a religious exception. There are also certain medical exemptions that you can use if you don’t want to receive the vaccine. Knowing the various exceptions – temporary and permanent, for example – and what documentation you need to provide to qualify is of the utmost importance.

However, it appears that COVID-19 numbers have dramatically declined in various jurisdictions that have fully reopened, such as Florida and Texas, and vaccination rates in the United States are close to 60% of the adult population, taking the extraordinary step of full compliance to arrange all uniforms. Individuals wishing to exercise their right to a vaccination waiver should be well aware of the rules and deadlines to adhere to if a vaccine is required to protect not only their health but also their careers.

[1] See https://www.cidrap.umn.edu/news-perspective/2004/10/court-ruling-again-stops-anthrax-shots-us-soldiers; President Bush never specifically ordered US troops to take the anthrax vaccine after significant backlash in election year 2004; however, the courts recognized that he was authorized to do so as Commander-in-Chief.

[1] Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. TO WASH. L. REV. 1 (2003)

[1] https://www.military.com/daily-news/2021/04/13/east-coast-based-marines-nearly-twice-likely-decline-covid-19-vaccine-data-shows.html


Sean C. Timmons, Esq. is Managing Partner of Tully Rinckey PLLC’s Houston office. Mr. Timmons is a seasoned military law attorney who served several years in the U.S. Army Judge Advocate Generals (JAG) Corps.

* The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, guidelines, or positions of this publication.

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