Abbott v. Biden, 70 F.4th 817

Background

In Aug. 2021 DoD (with Presidential support) mandated COVID-19 vaccination for all service members, including National Guard members; Texas Gov. Abbott issued a state executive order forbidding governmental COVID vaccine mandates and applied it to Texas Guard members.
DoD/Army/Air Force threatened five enforcement measures against non-federalized Guardsmen who failed to comply while the mandate was in effect: courts-martial, discharge, exclusion from drills/training, withholding individual pay, and withholding federal funds to States.
Abbott sued (Jan. 2022) under the APA and the Constitution seeking to enjoin enforcement against non-federalized Texas Guardsmen; the district court denied a preliminary injunction and Abbott appealed.
Congress and DoD later rescinded the vaccine mandate (Jan. 2023) but DoD reserved the ability to punish Guardsmen who refused vaccination while the mandate was operative and who did not seek accommodations; >1,000 Texas Guardsmen remain in that category.
The Fifth Circuit held the appeal not moot, concluded Abbott is likely to succeed on his constitutional claim that the federal government cannot punish non-federalized militia members, vacated the district court’s denial of a preliminary injunction, and remanded for further proceedings (including APA analysis and the remaining preliminary-injunction factors).

Issues

Issue	Plaintiff's Argument (Abbott)	Defendant's Argument (Biden/DoD)	Held
Mootness: Has rescission mooted Abbott’s request to enjoin enforcement?	Not moot — DoD retained authority to punish Guardsmen who disobeyed while the mandate was in effect; many Texans remain exposed.	Moot — the mandate was rescinded by statute and memos, so Abbott has obtained the relief sought.	Not moot — rescission left discrete individuals subject to enforcement, so federal courts can grant effectual relief.
APA justiciability: Are Abbott’s APA claims reviewable or precluded as military/committed functions?	APA claims are justiciable; DoD must explain and consider state-militia interests.	APA categories (military/foreign affairs; committed to agency discretion) bar judicial review.	Government forfeited those statutory carveouts by not arguing them below; APA claims are justiciable and require proper arbitrary-and-capricious review.
Constitutional power: Can the federal government punish non-federalized State Guardsmen for failing to comply with federal readiness rules?	No — Article I militia clauses and history reserve governing and punishment of non-federalized militia to States; federal punishment requires federalization.	Yes — Congress’s power to "organize, arm, and discipline" the militia includes enforcing readiness standards and attendant consequences.	Abbott likely to succeed — text, history, and tradition show Congress/President may govern/punish militia only when they are called into federal service; DoD’s threatened measures are punitive and impermissible as applied to non-federalized Guardsmen.
Preliminary injunction remedy: Was the district court’s PI analysis sufficient?	The court only considered likelihood of success; it must consider irreparable harm, balance of equities, and public interest, and apply correct APA/military-review standards.	District court’s limited analysis was sufficient to deny relief.	Vacated and remanded — district court must reconsider all preliminary-injunction factors and the APA/merits issues under correct legal standards.

Key Cases Cited

Perpich v. Dep’t of Def., 496 U.S. 334 (1990) (explains the National Guard’s dual state–federal character).
Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987) (Governor remains in charge of State National Guard unless federalized).
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for APA review).
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary-injunction standard).
Gilligan v. Morgan, 413 U.S. 1 (1973) (limitations on structural injunctions over military affairs).
Tarble’s Case, 80 U.S. 397 (1871) (rules of military discipline include power to define military offenses and prescribe punishment).
Houston v. Moore, 18 U.S. 1 (1820) (militia powers are concurrent but federal governing over militia is limited to when in actual service).
Martin v. Mott, 25 U.S. 19 (1827) (penalties attach to failure to obey a presidential call to federal service).
New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (text, history, and tradition framework for constitutional interpretation).