Following a directive from the President, Secretary of Defense Lloyd Austin and his team at the Pentagon went to work to determine if the DoD would make the COVID-19 vaccination mandatory for the active-duty members of the US military.
According to Barbara Starr, CNN Pentagon correspondent, a Defense department official said that “Austin’s ‘inclination is towards making the COVID-19 vaccine mandatory’ for active-duty troops.”
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The problem is that federal laws prohibts mandating a vaccination that is not already approved by the Food and Drug Administration.
Not only does it violate federal law, but it also goes against the legal precedent established in Doe #1 V. Rumsfeld (2003).
For those unfamiliar with that particular case, active-duty service members sued the Department of Defense over the mandating of the anthrax vaccine.
The court found in favor of the soldiers given that it was an experimental drug. The court also stated, that should the DoD mandate the shot, it would be in violation of 10 U.S.C. § 1107, Executive Order 13139, and DoD Directive 6200.2.
The Department of Justice issued a memo stating in part, “because DOD has informed us that it understandably does not want to convey inaccurate or confusing information to service members—that is, telling them that they have the ‘option’ to refuse the COVID-19 vaccine if they effectively lack such an option because of a military order—DOD should seek a presidential waiver before it imposes a vaccination requirement.”
However, it remains to be seen if a Presidential waiver will supersede existing laws or the legal precedence established in Doe V Rumsfeld.