As far as receiving a presidential waiver to mandate the vaccine before it is FDA approved, Green said the president can do so only in connection with service members’ participation in a “particular military operation.” He cited 10 U.S. Code § 1107, which states:
“Right now what they’re talking about — a blanket mandate for all of DOD — is not in accordance with the law,” he said. “If you just excuse the executive branch breaking the law, then what’s next?” He added:
That was the whole point of the way our nation built the military and made it second to the civilian control and the laws of the land so that we wouldn’t have the president, through his military, act outside of the laws written by Congress. It just goes to the very foundation of who we are as a country. You can’t break the laws as the secretary of defense. That’s going down a path that we can’t go down as a country.
The White House
Both CNN and Fox News reported on Wednesday that Austin would send a recommendation to President Joe Biden to make the vaccines mandatory for members of the military, in addition to other mandatory vaccines. The administration could announce it as early as this week. Fox News reported it will come on Friday.
Green sent his letter to Austin on Friday morning in hopes of heading off the move. If the reports are accurate, it may have worked. He said as of Friday afternoon, no order from the president had been given to military commanders.
Green wrote to Austin in his letter:
The law of the United States is clear. Mandatory vaccination is illegal for military personnel prior to complete approval (Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004). This has not occurred and could be another several months away.
As long as the vaccine is authorized under an Emergency Use Authorization, the Department of Defense does not have the authority to implement such an order. Servicemembers who do not wish to receive the vaccine cannot be required until the approval process is completed. Any action to require it is illegal. The Secretary of Defense is not above the law. The courts concurred.
Fifteen other Republicans joined Green in signing the letter. They include Reps. Stephanie Bice (OK), Jack Bergman (MI), Warren Davidson (OH), Barry Moore (AL), Jim Baird (IN), Mariannette Miller-Meeks (IA), Scott DesJarlais (TN), Buddy Carter (GA), Michael Burgess (TX), Claudia Tenney (NY), Brian Babin (TX), Greg Murphy (NC), Randy Weber (TX), Michael Guest (MS), and Dan Bishop (NC). At least four are physicians besides Green.
Green said from a physician’s perspective, the coronavirus vaccine is just like any other vaccine with risks and benefits, and he recommends it for older adults for whom the risk of getting coronavirus is greater than the risk from the vaccines. “So, I say people should get the vaccine, but, it’s a risk-benefit analysis that should be made between the patient and the doctor,” he said.
He said he and other lawmakers have been getting calls at their offices for weeks about leaders’ harassment of troops to get vaccinated, so when reports said the defense secretary was planning to recommend to Biden to make vaccines mandatory, people “all over the military were calling us and emailing us and calling our office.”
He said any harassment to get vaccinated before the vaccines are FDA approved or mandatory is illegal.
“No harassment can be happening right now, none at all. And if it is, it’s illegal,” he said.