GREG ABBOTT, in his official capacity as Governor of the State of Texas, Plaintiff—Appellant, versus JOSEPH R. BIDEN, in his official capacity as President of the United States; DEPARTMENT OF DEFENSE; LLOYD AUSTIN, Secretary, U.S. Department of Defense; DEPARTMENT OF THE AIR FORCE; FRANK KENDALL, III, in his official capacity as Secretary of the Air Force; DEPARTMENT OF THE ARMY; CHRISTINE WORMUTH, in her official capacity as Secretary of the Army, Defendants—Appellees.
No. 22-40399
United States Court of Appeals for the Fifth Circuit
June 12, 2023
Before STEWART, WILLETT, and OLDHAM, Circuit Judges. ANDREW S. OLDHAM, Circuit Judge.
The President of the United States asserts the power to punish members of the Texas National Guard who have not been called into national service. The Constitution and laws of the United States, however, deny him that power.
At the Founding, few issues garnered more attention and debate than did the Constitution‘s allocation of power over the military. The Federalists and Anti-Federalists feared that a standing army would lead ineluctably to tyranny. The Founders also recognized, however, that our then-fledgling Nation needed a strong national defense. The Constitution‘s solution to this dilemma is embodied in its Militia Clauses. Those clauses reflect a delicate compromise that gives the States power over their respective militias—subject to the President‘s power to call those militias into national service when necessary.
In this case, President Biden imposed and then repealed a mandate requiring State militiamen to take the COVID-19 vaccine. And now that the President has rescinded the vaccine requirement, he wants to retain the power to punish militia members who refused to get the shots while the mandate was in effect—all without calling them into national service. We reject the President‘s assertion of power because it would undermine one of the most important compromises in the Constitution. If the Constitution‘s text, history, and tradition make anything clear, it‘s that the President can punish members of the Texas militia only after calling them into federal service.
It‘s also important to clarify at the outset what this case is not about. This is not a case about “military readiness.” The Government repeatedly emphasizes that our national government has set military readiness standards since the Founding. That‘s equal parts true and irrelevant. It‘s of course true, for example, that Congress in 1792 adopted Baron von Steuben‘s “Rules of Discipline,” which included a host of military instructions intended to make militias ready for national service if and when called to perform it. But it‘s equally true that the States—and the States alone—retained power to implement those readiness requirements. And crucially, the States—and the States alone—retained power to punish members of their militias who fell short of those standards. Thus, while it appears common ground between the parties that the President can impose vaccine requirements as part of the national effort to ensure military readiness, only the States can punish non-federalized Guardsmen who fall short of that standard. That‘s especially true in this case because the Secretary of Defense conceded that COVID shots are no longer necessary to military readiness when he repealed the mandate.
I.
A.
The relationship among the National Guard, the States, and the federal military is complex. See Perpich v. Dep‘t of Def., 496 U.S. 334 (1990). But in broad strokes, the National Guard includes two “overlapping but distinct organizations“—the National Guards of the various States and the National Guard of the United States. Id. at 345. All who enlist in a State‘s National Guard must simultaneously enlist in the National Guard of the United States, ibid., which is a “reserve component[] of the armed forces,”
The State of Texas, for example, trains members of the Texas National Guard (which we refer to as the “Texas militia” or “Texas Guard“) and appoints its officers.
The President of the United States is Commander in Chief of the United States Armed Forces at all times. He‘s Commander in Chief of the National Guard of the United States at all times. But he‘s Commander in Chief of the State Guards only at limited times. Specifically, the President becomes “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.”
B.
On August 24, 2021, the Secretary of Defense ordered all members of the military to take COVID vaccines. “[W]ith the support of the President,” Secretary of Defense Lloyd Austin “direct[ed] the Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard.” Memorandum, Secretary of Defense, Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members (Aug. 24, 2021) (emphasis added). Secretary Austin explained that “[t]o defend this Nation, we need a healthy and ready force.” Ibid.2
The next day, on August 25, 2021, Texas Governor Greg Abbott issued Executive Order GA-39. He commanded that “on a statewide basis . . . [n]o governmental entity can compel any individual to receive a COVID-19 vaccine.” Under his power as Commander in Chief of the State‘s military forces, Governor Abbott later clarified that GA-39 applies to all members of Texas‘s militia, including the Texas National Guard.
On November 30, 2021, Secretary Austin directed the Army and Air Force to create “policies and implementation guidance to address the failure to maintain this military medical readiness requirement by members of the non-federalized National Guard who remain unvaccinated.” Memorandum, Secretary of Defense, Coronavirus Disease 2019 Vaccination for Members of the National Guard and the Ready Reserve (Nov. 30, 2021). The Government eventually threatened five consequences against noncompliant Guardsmen and States (collectively, “the enforcement measures“):
- Courts-martial.
32 U.S.C. §§ 326 –27 . - Discharge from the National Guard.
Id. §§ 322 –24 . - Prohibiting Guardsmen from participating in drills, training, and other duties.
Id. §§ 501 –02 . - Withholding pay from individual Guardsmen.
Id. § 108 . - Withholding funds from individual States. Ibid.
Governor Abbott filed suit on January 4, 2022.3 He alleged that the military vaccine mandate is arbitrary and capricious within the meaning of the Administrative Procedure Act (“APA“). He also alleged that all but one of the Government‘s planned enforcement measures violate the Constitution. For relief, Governor Abbott sought an order declaring the vaccination requirement and the challenged enforcement measures unlawful, setting them aside, and enjoining their enforcement as to non-federalized
Governor Abbott then moved for an order preliminarily enjoining the defendants from enforcing the vaccine mandate against members of the Texas militia not in federal service. The district court denied the motion. The Governor appealed under
After our court heard oral argument, President Biden and Congress directed Secretary Austin to rescind the COVID vaccine mandate for military service members. See James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022). On January 10, 2023, Secretary Austin rescinded his earlier memos. Memorandum, Secretary of Defense, Rescission of August 24, 2021, and November 30, 2021, Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces (Jan. 10, 2023). He left undisturbed “[o]ther standing Departmental policies, procedures, and processes regarding immunizations.” Ibid. And he also clarified that “[n]o individuals currently serving in the Armed Forces shall be separated solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds.” Ibid.
II.
“Jurisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022) (quotation omitted). Mootness is a jurisdictional question because “[t]he inability of the federal judiciary to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (quotation omitted). To invoke the jurisdiction of the federal courts under Article III, a plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477 (1990). That‘s standing. The mootness doctrine, by contrast, requires that a plaintiff‘s interest in a suit “exist[] throughout the proceedings.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021). That means a case becomes moot “when it is impossible for a court to grant ‘any effectual relief whatever to the prevailing party.‘” Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 307 (2012) (quoting Erie v. Pap‘s A.M., 529 U.S. 277, 287 (2000)).
The Government claims this appeal is moot. That‘s so, it says, because Governor Abbott seeks to enjoin the Government from enforcing the vaccine mandate against Texas‘s militia; but after Governor Abbott filed suit, President Biden signed into law a statute that ordered Secretary Austin to rescind that very mandate. See § 525, 136 Stat. at 2571–72 (“Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19.“). The Government asserts that “[b]ecause the Texas National Guard is no longer subject to the challenged requirement, Governor Abbott has obtained all the relief that he sought in this appeal.”
If that were true, it would very likely moot this appeal. See, e.g., Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020) (“[A] case challenging a statute, executive
As such, many Texas militiamen still face the same enforcement measures that Governor Abbott seeks to enjoin. This appeal therefore isn‘t moot because we can still grant “effectual relief.” Pap‘s A.M., 529 U.S. at 287 (quotation omitted); see also Dailey v. Vought Aircraft Co., 141 F.3d 224, 226–29 (5th Cir. 1998); First Nat‘l Bank of Lamarque v. Smith, 610 F.2d 1258, 1262–63 (5th Cir. 1980). We therefore have jurisdiction.
III.
We turn to the preliminary injunction. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. “[T]he ultimate decision whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion.” Speaks v. Kruse, 445 F.3d 396, 399 (5th Cir. 2006) (quotation omitted). But “a decision grounded in erroneous legal principles is reviewed de novo,” ibid., and factual findings are reviewed for clear error, Texans for Free Enter. v. Tex. Ethics Comm‘n, 732 F.3d 535, 537 (5th Cir. 2013).
The only factor the district court considered is likelihood of success on the merits. Governor Abbott asserts (A) an APA challenge and (B) a constitutional one. We remand as to both so the district court can apply the correct legal standards.
A.
We first must ensure that Governor Abbott‘s APA claims are justiciable. See Meister v. Tex. Adjutant Gen.‘s Dep‘t, 233 F.3d 332, 335 (5th Cir. 2000). The Government could have argued (but failed to argue) that the Governor‘s APA claims are non-justiciable because the APA explicitly carves out from its coverage “a military or foreign affairs function of the United States.” See
These carveouts are forfeitable. That‘s because, where the carveouts apply,
Assured that Governor Abbott‘s APA claims are justiciable, we turn to the applicable standards. The APA instructs courts to “hold unlawful and set aside” agency actions that are “arbitrary” or “capricious.”
True, matters of military affairs warrant judicial modesty. See, e.g., Gilligan v. Morgan, 413 U.S. 1 (1973). But the plaintiffs in Gilligan requested a structural injunction—“a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard.” Id. at 5; see also Horne v. Flores, 557 U.S. 433, 447–50 (2009) (describing some of the myriad problems with structural injunctions). Such structural injunctions are obviously inappropriate because they transgress the Constitution‘s limits on the judicial power. See Gilligan, 413 U.S. at 8–10.
Governor Abbott‘s request is far more modest. He does not request a structural injunction or a nationwide one. He also does not request any relief that would inhibit the President‘s power over the federalized Guard. Rather, he asks only to protect the Guardsmen who are in the State‘s service from unlawful regulation by a President who has not federalized them. This is far afield from Gilligan.
The APA requires more. As the Governor argued:
Defendants “entirely failed to consider an important aspect of the problem,” Motor Veh. Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983): Guardsmen are not a mere supplement to the federal military, but a vital part of each State‘s ability to secure its citizens’ property, liberty, and lives—a vitality that is sapped by drumming Guardsmen out of militia service. The Defendants’ failure to weigh those considerations before upending the Texas National Guard‘s chain of command requires that the Enforcement Memoranda be set aside.
ROA.248; see also Holdiness, 808 F.2d at 421 (“The Governor remains in charge of the National Guard in each [S]tate except when the Guard is called into active federal service.“); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497 (2010) (“[T]he separation of powers does not depend on the views of individual Presidents.“); Morrison v. Olson, 487 U.S. 654, 704–05 (1988) (Scalia, J., dissenting) (“[W]here the issue pertains to separation of powers, and the political branches are . . . in disagreement, neither can be presumed correct.“).
We remand the Governor‘s APA claims so the district court can consider these points more fully.
B.
Next the Constitution. Governor Abbott acknowledges that Congress can set readiness requirements for the Texas Guard. And he further recognizes that the erstwhile COVID vaccine mandate was one such requirement. But the Governor argues that the Constitution forbids the Government from stepping into his shoes and directly enforcing readiness requirements against non-federalized Guardsmen. We agree. Unless and until the Texas militia is federalized, Governor Abbott retains exclusive authority to punish his militiamen and otherwise govern them. That‘s because (1) the Constitution‘s text clearly says so, and (2) Founding-era history reinforces that straightforward reading of the text.
1.
“[O]ur duty [is] to interpret the Constitution in light of its text, structure, and original understanding“—as informed by history and tradition. NLRB v. Noel Canning, 573 U.S. 513, 574 (2014) (Scalia, J. concurring); see also N.Y. State Rifle & Pistol Ass‘n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (evaluating text, history, and tradition). Here, as in all of law, text is king. See Martin v. Hunter‘s Lessee, 14 U.S. (1 Wheat.) 304, 338–39 (1816) (“If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.“); Dobbs v. Jackson Women‘s Health Org., 142 S. Ct. 2228, 2244–45 (2022) (“Constitutional analysis must begin with ‘the language of the instrument,’ which offers a ‘fixed standard’ for ascertaining what our founding document means.” (first quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 186–89 (1824); then quoting 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 399 (1833))); Bruen, 142 S. Ct. at 2137 (“[T]o the extent later history contradicts what the text says, the text controls.“).
Here, the relevant text appears in the Constitution‘s two Militia Clauses. You might reasonably wonder why a case about the National Guard turns on constitutional provisions governing the militia. The answer: “[T]he [N]ational [G]uard is the militia, in modern-day form, that is reserved to the [S]tates by Art. I § 8, cls. 15, 16 of the Constitution.” Lipscomb, 333 F.3d at 613; accord Maryland ex rel. Levin v. United States, 381 U.S. 41, 46, vacated on other grounds, 382 U.S. 159 (1965) (“The National Guard is the modern Militia reserved to the States by Art. I, § 8, cl[s]. 15, 16, of the Constitution.“).
Accordingly, both the Government and Governor Abbott agree that Clauses 15 and 16 of Article I, Section 8 directly control this dispute. We refer to the first of these as the “Calling Forth Clause“; it assigns Congress the power:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.]
Altogether, the Calling Forth and Organizing Clauses empower Congress to provide for “organizing,” “arming,” and “disciplining” the militia at all times; Congress can also provide for “governing”
At the Founding, each of the above-italicized terms had a well understood meaning in the military domain. We (a) define each in the context of the Organizing Clause and then (b) analyze the Government‘s enforcement measures.
a.
“As always, we start with the original public meaning of the Constitution‘s text.” NetChoice, LLC v. Paxton, 49 F.4th 439, 452–53 (5th Cir. 2022). When the Organizing Clause was drafted, the words (i) “organize,” (ii) “arm,” (iii) “discipline,” and (iv) “govern” had well-understood meanings—especially in the military context.
i.
Organize: At the Founding, to “organize” generally meant “To construct so as that one part co-operates with another.” 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE 243 (6th ed. 1785). And so in the military context, “organizing” included such things as “distribut[ing] [the whole] into suitable parts and appoint[ing] proper officers, that the whole may act as one body; as, to organize an army.” 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 214 (1828); see also Records of the Federal Convention, reprinted in 3 THE FOUNDERS’ CONSTITUTION 205, 206 (Philip B. Kurland & Ralph Lerner eds., 1987) (“Mr. King, by way of explanation, said that by organizing the Committee meant, proportioning the officers & men.“). Indeed, Congress in 1792 exercised its constitutional authority to “provide for organizing . . . the Militia” by passing a law requiring that “the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions and companies.” Act of May 8, 1792, ch. 33, § 3, 1 Stat. 271, 272; cf. 2 WEBSTER, supra, at 127 (defining “militia” as “the able bodied men organized into companies, regiments and brigades” (emphasis added)). Congress again leaned on the “organizing” power in the twentieth century when it reorganized the militia into the modern National Guard. See Perpich, 496 U.S. at 342; Frederick Bernays Wiener,
ii.
Arm: “Arm” had much the same meaning at the Founding as it does today. Samuel Johnson‘s 1785 dictionary defined “arm” as “To furnish with armour of defence, or weapons of offence.” 1 JOHNSON, supra, at 178; accord 1 WEBSTER, supra, at 185 (“To furnish or equip with weapons of offense, or defense; as, to arm the militia.” (emphasis added)). Noah Webster‘s post-Founding 1828 dictionary defined “arming” similarly. 1 WEBSTER, supra, at 186 (“Equipping with arms; providing with the means of defense or attack.“). Accordingly, one might think that the Organizing Clause simply authorizes Congress to furnish weapons and other military equipment to the militia. It certainly does allow that; but because the Organizing Clause gives Congress the power to “provide for . . . arming,”
iii.
Govern: The Organizing Clause equips Congress with the power to “provide for . . . governing” the federalized militia.
Governing in the military context was understood (and still is) similarly. The Founding generation understood the “governing” power to encompass, inter alia, the power to command and control the troops10 as well as to enforce the relevant laws against them.11 They also understood the authority to enforce the law as naturally entailing the power to punish—or otherwise impose consequences upon—those subject to it.12 “Govern” is
used the same way earlier in the Constitution.
And so, because the Constitution only grants the United States governing authority over the militia after the militia has successfully been called forth “to execute the Laws of the Union, suppress Insurrections and repel Invasions,”
iv.
Discipline: Lastly, Congress can also “provide for . . . disciplining” the militia.
In context, however, it appears clear that the Organizing Clause uses “discipline” to mean instruction and not punishment.
Moreover, if “discipline” included punishment, it would render the “governing” power largely superfluous.
This understanding of “discipline” tracks how the word was typically used in the military context at the Founding. The above-mentioned dictionaries, for example, primarily equate military discipline with teaching and instructing.15 As did the Founders and others during the Founding era.16
The Founders also sought to ensure that the militia be trained according to a uniform discipline so they could act in concert when federalized. See, e.g., Pinckney, supra, at 207 (“[A] uniformity in Discipline and Regulations should pervade the whole, otherwise, when the Militia of several States are required to act together, it will be difficult to combine their operations from the confusion a difference of Discipline and Military Habits will produce.“); The Federalist No. 29, at 140 (Alexander Hamilton) (“It requires no skill in the science of war to discern, that uniformity in the organization and discipline of the militia, would be attended with the most beneficial effects, whenever they were called into service for the public defence. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert . . . an advantage
So too did Congress. For example, Congress in 1792 passed “An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.” 1 Stat. 271. In § 7 of that Act, Congress adopted “Baron von Steuben‘s ‘Rules of Discipline,’ which had originally been adopted by [the Continental] Congress in 1779.” Wiener, supra, at 214 n.188 (citing 13 Journals of the Continental Congress 384–85).17 Von Steuben‘s disciplinary rules were a “150-plus page manual regulat[ing] all manner of military operations,” from “the proper positioning of soldiers within a company and a regiment on the battlefield” to detailed “instructions for loading and firing rifles.” Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 Tex. L. Rev. 299, 332 (2008); see also Joseph R. Riling, Baron von Steuben and His Regulations (1966) (including a complete facsimile of von Steuben‘s Regulations). Here again, as elsewhere, the Founding generation understood militia “discipline” as the instructions and standards the United States wanted the militia to learn in state training so they would be uniformly prepared when “call[ed] forth.”
b.
Where does President Biden‘s military vaccine mandate fit into the Organizing Clause‘s text? Everyone acknowledges that the Government can set readiness requirements for non-federalized Guardsmen by dint of the “disciplining” power.18 And Governor Abbott stipulates that the erstwhile vaccine mandate was one such readiness requirement.
The parties differ, however, on how to classify most of the enforcement measures. Recall that the Government has threatened five consequences against those who refused to get COVID injections while the
We agree with the Governor. As explained above, the “governing” power encompasses the authority to punish the militia and otherwise enforce the relevant laws against them. See supra Part III.B.1.a.iii. On this understanding, both court-martialing and firing noncompliant Guardsmen are punishments. So are preventing those Guardsmen from training and withholding their pay. Accordingly, the Government‘s enforcement orders unlawfully usurp Governor Abbott‘s exclusive constitutional authority to “govern” the non-federalized Texas militia.
2.
Founding-era history supports this understanding of the Organizing Clause. See Gamble v. United States, 139 S. Ct. 1960 (2019) (beginning with text before turning to history); Bruen, 142 S. Ct. 2111 (same). We (a) begin with the background concerns that informed the Organizing and Calling Forth Clauses. Then we (b) discuss the Founders’ constitutional compromise, which gave the United States significant war powers but deprived the new national government the power to punish non-federalized militiamen.
a.
The Revolutionary War exposed many defects in the Articles of Confederation—chief among them its decentralized military structure. The Articles gave the federal government power to declare war and “make requisition from each state for its quota [of militiamen].” Articles of Confederation of 1781 art. IX, para. 5; see also id. art. VI, para. 5.; id. art. IX para. 1; The Federalist No. 22, at 105 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001) (“The power of raising armies [in the Articles] . . . is merely a power of making requisitions upon the states for quotas of men.“). And the States, in turn, were required to “always keep up a well regulated and disciplined militia, sufficiently armed and accoutred.” Articles of Confederation of 1781 art. VI, para. 4.
“The problem of course was that the Articles of Confederation stopped midstream. Congress was empowered to wage war but was dependent on the cooperation of the [S]tates to do so.” Jason Mazzone, The Security Constitution, 53 UCLA L. Rev. 29, 76 (2005). That‘s because there was “no mechanism to force the [S]tates to comply.” Ibid.
This system proved costly and cumbersome. For one, it produced a collective action problem: “The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions.” Federalist No. 22, at 106 (Alexander Hamilton). This led to “scanty levies of men” in “the most critical emergencies.” Ibid. Relatedly, because there was little to no national coordination of the militia‘s preparation, the Revolutionary War exposed a concomitant “lack of uniformity in [the militia‘s] organization, equipment and
On the other hand, “[a]mong the ratifying generation, support for a [stronger] national military coexisted with widespread fears of a standing army.” Mazzone, supra, at 65; see also United States v. Miller, 307 U.S. 174, 179 (1939) (“The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-civilians primarily, soldiers on occasion.“); District of Columbia v. Heller, 554 U.S. 570, 597–99 (2008). Informed in no small part by their experiences with British troops on American soil, see Declaration of Independence paras. 13, 14, 16 (U.S. 1776), the Founding generation worried that professional soldiers would imperil the promises of a free government, see Akhil R. Amar, The Bill of Rights: Creation and Reconstruction 53–56 (1998). That‘s because professional soldiers—unlike the citizen-populated militia—were “removed from the freedoms enjoyed by the republican political community that they were defending.” Robert Leider, Federalism and the Military Power of the United States, 73 Vand. L. Rev. 989, 996 (2020); see also 1 William Blackstone, Commentaries *414–17. The Founding generation thought this weakened the soldiers’ ties to the rest of society and rendered them vulnerable to manipulation by tyrants. Thus, as Samuel Adams wrote:
A standing Army . . . is always dangerous to the Liberties of the People. Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens. They have their Arms always in their hands. Their Rules and their Discipline is severe. They soon become attachd to their officers and disposd to yield implicit Obedience to their Commands. Such a Power should be watchd with a jealous Eye. . . . Men who have been long subject to military Laws and inured to military Customs and Habits, may lose the Spirit and Feeling of Citizens. . . . [But] [t]he Militia is composd
of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them.
Letter from Samuel Adams to James Warren (Jan. 7, 1776). Federalists and Anti-Federalists alike expressed the same concerns.21 As did generations of their forefathers “[t]hroughout English history.” Conway, supra, at 174.
The Federalists and Anti-Federalists also agreed on this: They “prized and cherished” the militia as “the palladium of liberty.” Ibid. Inspired by the storied militia system of Mother England, every colony (save for Pennsylvania) organized a militia as early as the seventeenth century. See Mazzone, supra, at 70–71 (“Every able-bodied, white male was required to arm himself, enroll in the local unit, participate in training exercises, and go to fight when called.“). The Founders continued to believe that such a large group of armed and trained men intensely loyal to their States and localities would “enable the people to resist and triumph over” sudden “foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.” 3 Story, supra, § 1890; accord Noah Webster, An Examination into the Leading Principles of the Federal Constitution, reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussions by the People, 1787-1788, at 25, 43 (Paul L. Ford ed., 1888) (“The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.“).
But the militia was more than just a check against tyranny. The Founding generation also considered it an essential civic institution and a source of pride. Where the contemporary military is national, hierarchical, and professional, the early-American militia was local, democratic, and unapologetically amateur. In the minds of the Founding generation, the militia thus sparked notions of civic duty, self-reliance, and republican virtue. See Daus, supra, at 493–504; John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 227 (1996). Accordingly, many Founders trusted and lauded the militia for the very same reasons they despised standing armies. See Leider, supra, at 996–98. Even those most comfortable with standing armies and professional soldiers
The Constitution thus must be understood in this tripartite historical context. (1) The Founding generation understood the need for a strong national defense. (2) Yet the Founders loathed and feared standing armies. The bridge between those two propositions? (3) They cherished and trusted the militia, which was first and foremost a state prerogative—unless and until federalized by the general government.
b.
The Constitution reflects all three propositions. To ensure the United States can adequately defend itself, the Constitution assigns Congress the power to “raise and support” an Army and Navy.
The Constitution also preserves the militia as another check on the standing Army. But unlike the Articles of Confederation, the Constitution more substantially bifurcates authority over the militia between the state and federal governments. Primary control resides with the States, but the United States can use and control the militia in certain circumstances. To dampen the need for a standing army, Congress can provide for “calling forth” the militia into federal service and for “governing” such part of them in federal service. Id. cls. 15–16. The “calling forth” power, however, is in turn limited to three purposes: “execut[ing] the Laws of the Union, suppress[ing] insurrections[,] and repel[ling] invasions.” Id. cl. 15.
What about the lack of training and uniformity that plagued the militia during the Revolution? The Constitution addresses this by authorizing Congress to provide uniform standards for the organizing, arming,
Here, as in so many areas of constitutional interpretation, the Federalist–Anti-Federalist debates are illuminating. The Anti-Federalists worried that the federal government would arrogate to itself too much power over the States’ militias. The Federalists insisted that would never happen and that non-federalized militias would remain the States’ domain.
Let‘s start with the Anti-Federalists’ concerns. At the constitutional convention, for example, the great Anti-Federalist Elbridge Gerry exclaimed that if too much control over the militia was taken away from the States, the Constitution would “have as black a mark as was set on Cain.” Records of the Federal Convention, supra, at 206; see also Luther Martin‘s Letter on the Federal Convention of 1787, reprinted in 1 Elliot‘s Debates, supra, at 344, 372 (“[If too much] power over the militia should be taken away from the [S]tates, and also given to the general government, it ought to be considered as the last coup de grace to the State governments.“). The Anti-Federalists also worried that if the United States was given too much control
In response, the Federalists assured the Anti-Federalists time and again that the Organizing Clause would only authorize punishment after the militia had been “called forth“—and the “governing” power had been unlocked. At the Virginia Ratifying Convention, for example, Anti-Federalist George Mason worried that the Organizing Clause countenanced “the power of annexing punishments” against the militia. 3 Elliot‘s Debates, supra, at 402 (he did, however, admit this was a “strained construction” of that Clause). Henry Lee then quickly and forcefully retorted that Mason was “mistaken.” Id. at 407. Lee proclaimed: “Suffice it to say, [the Organizing Clause] does not include the infliction of punishments. The militia will be subject to the common regulations of war when in actual service; but not in time of peace.” Ibid. A chorus of other Federalists made similar arguments.27
Even James Madison
Soon after the Constitution was ratified, Congress provided punishments for those in the Army and the federalized militia only.28 (Tellingly, many of those punishments mirror those the Government has here threatened against Texas‘s Guardsmen—including courts-martial, discharge, and withholding pay.) Although Congress
In fact, the only time the Founding-era Congress provided any punishments for non-federalized militiamen was when they refused the President‘s call to serve. See Act of May 2, 1792, ch. 28, 1 Stat. 264 (listing punishments for failure to obey the President‘s call);
Thus, the Constitution‘s text, history, and tradition instruct that States retain exclusive authority to punish militiamen—unless and until called into national service. If and when the militia is called into federal service, the President can punish either the refusal to heed his call or the refusal to meet his standards. But that power exists only when the militia is called into national service. That‘s why President Biden is “Commander in Chief . . . of the Militia of the several States” only ”when called into the actual Service of the United States.”
* * *
The Constitution forbids President Biden from treating the non-federalized militia just like the Army. One of the Constitution‘s most foundational compromises reserved substantial authority over the militia to the States. As demonstrated at length above, the plain meaning of the Organizing Clause as well as pre-ratification and post-ratification history all point in the same direction: Governor Abbott retains exclusive power to punish his non-federalized Guardsmen and otherwise govern them. Governor Abbott is thus likely to succeed on his claim that the Government‘s challenged enforcement measures are unconstitutional.
C.
Against the Constitution‘s text, history, and tradition, President Biden offers four counterarguments. None is persuasive.
1.
The Government claims that the Founding-era history discussed above isn‘t relevant
Moreover, the above history does shed light on this dispute. The Founders created a vertical separation of powers over the militia precisely to prevent the federal government from treating the militia just like the Army. See supra Part III.B.2. Today—just as in 1789—the Organizing Clause ensures that the militia remains under state governance unless and until it is properly federalized. And it‘s hard to imagine a more obvious exercise of the “governing” power than punishing someone for disobedience.
2.
The Government next contends that its threatened enforcement measures are not “punishments,” but instead are mere “consequences” emanating from its “disciplining” power. That‘s so, it says, because “disciplining” “naturally includes the ability to impose consequences for non-compliance with the rules prescribed.” Red Br. 31. Or as the Government put it elsewhere, “[a] necessary corollary to the ability to set readiness standards is the ability to enforce readiness standards.” Id. at 23.
That reasoning is flawed for a host of reasons. We‘ll highlight three.
First, as a textual matter, the Government‘s capacious understanding of the “disciplining” power contravenes the original public meaning of “discipline“—the skills and standards the United States wanted the militia to learn in state training. See supra Part III.B.1.a.iv. It also robs the “governing” power of its original meaning by rendering it largely superfluous. See supra Part III.B.1.a.iii. Worse yet, this reading rips the otherwise cohesive constitutional fabric by giving the term “govern” radically distinct meanings just two sentences apart. Ibid. Compare
Second, and crucially, the Government obviously does not consider the COVID vaccine mandate a “readiness standard” because the Government repealed the mandate. Indeed, the Government hasn‘t threatened any “consequences” against (A) unvaccinated Guardsmen hired after the mandate‘s repeal. But the Government has threatened to impose “consequences” against (B) those Guardsmen who didn‘t get injections while the mandate was in effect. How could the mandate constitute a “readiness requirement” if Guardsmen A can freely ignore it, but Guardsmen B can‘t? Thus—contrary to the Government‘s frequent pre-repeal statements—the mandate has nothing to do with “ensur[ing] that National Guard members are ready to integrate into U.S. military operations and to serve the nation on short notice” because members of that military now have diametrically different vaccination statuses. Nor are the enforcement measures mere “consequences” in furtherance of military readiness. Instead, they‘re punishments
Finally, as a structural matter, even if the power to “provide for . . . disciplining” the militia included the ability to punish disobedience, the Constitution commands that the States alone can mete out that discipline to non-federalized Guardsmen. And States do that, of course, by (1) “training the Militia according to the discipline prescribed by Congress” and (2) otherwise “governing” them.
To all this, the Government defends its capacious reading of “discipline” by arguing that “governing” would still have some meaning under its interpretation: “When the federal government is ‘governing’ the militia, the National Guard is under the exclusive control of the federal government in ways that the non-federalized National Guard is not.” Red Br. 33. But even if the Government‘s interpretation gives “governing” some meaning, it‘s still unconstitutional if it doesn‘t give “governing” the right meaning. Regardless, if the Government could simply bypass the States’ Governors and enforce any requirement it liked directly against the States’ Guardsmen, it‘s unclear what new power the Government unlocks once it federalizes the Guard.
3.
The Government alternatively frames its threatened punishments as “merely the enforcement of conditions on the receipt of federal funds.” The district court did too: “looking past labels, the consequences at issue are only an inability to receive federal pay, benefits, and recognition for militia service not compliant with
The Government protests that Congress gave it the statutory authority to do more than simply withhold funding from the States. Specifically, the Government points to
4.
Finally, the court below based its decision in large part on its understanding that the Government has not threatened to court-martial any non-federalized Guardsmen. As the district court explained, “the vaccination requirement at issue is enforced only through a denial of federal pay, federal benefits, and federal recognition that enables those federal pay and benefits.” That was error. In its opposition to Governor Abbott‘s preliminary injunction motion, the Government attached a declaration of Colonel Mulcahy, who summarized the “various means for the federal government to ensure that state National Guards comply with federal military regulations when they are performing federally authorized training and missions in a Title 32 status.” Among other things, Colonel Mulcahy listed “courts-martial of National Guard service members who are not in Federal service” and cited the statutory authority for courts-martial,
As a backup argument, the Government qualifies Colonel Mulcahy‘s declaration by explaining that “[a]lthough Congress [in
IV.
In addition to likelihood of success on the merits, Governor Abbott must also demonstrate “that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. Because the district court only considered the likelihood-of-success prong, we remand so the district court can consider the other three in the first instance. E.g., Sambrano v. United Airlines, Inc., 2022 WL 486610 (5th Cir. 2022) (per curiam) (remanding for consideration of the not-yet-evaluated preliminary injunction factors).
We do, however, note that the situation is materially different now than it was when the district court first considered Governor Abbott‘s preliminary injunction motion. That‘s because the Government repealed the vaccine mandate whilst still threatening punishment for past disobedience. That obviously changes the nature of all three remaining preliminary injunction factors.
* * *
The Government conceded that its erstwhile vaccine mandate is unnecessary to military readiness by repealing it. The question, therefore, is whether the President can punish non-federalized Guardsmen in Texas who refused to get COVID injections before the President and Congress deemed such injections unnecessary. For the reasons given above, we hold that the Constitution‘s text, history, and tradition foreclose the President‘s efforts to impose such punishments.
We VACATE the district court‘s order denying Governor Abbott‘s motion for a preliminary injunction and REMAND for further proceedings consistent with this opinion.