Exclusive–Kobach: Airmen Lawsuit Illustrates the Madness of Biden’s Vaccine Mandates

TEXAS - AUGUST 31: In this U.S. Air Force handout, Senior Airman Austin Hellweg, 129th Res
Staff Sgt. Jordan Castelan/U.S. Air Force via Getty Images

On Tuesday morning, 36 airmen in the active-duty Air Force, the Air Force Reserve, and the Air National Guard filled a lawsuit in the U.S. District Court in Omaha, Nebraska, challenging the legality of President Biden’s COVID-19 vaccine mandate on service members in the Air Force.  It is one of the largest lawsuits against the military mandates that has been filed to date.

The airmen have all applied for a religious exemption to the mandate because taking the vaccine violates their sincerely-held religious beliefs.  They are seeking a judgment that the mandate violates the Religious Freedom Restoration Act (“RFRA”) of 1993, as well as the Free Exercise Clause of the First Amendment to the U.S. Constitution.  They are also seeking an injunction to stop the Air Force from discharging them and others in the Air Force who have requested religious exemptions from the mandate.  The airmen are represented by lawyers from the Alliance for Free Citizens (where I am general counsel) and the America First Policy Institute.

The airmen are almost all stationed at Offutt Air Force Base near Omaha, Nebraska, or McConnell Air Force Base in Wichita, Kansas.  They add their suit to a few others brought by members of the military.  Most notably, a group of Navy SEALs won a preliminary injunction in federal court in Texas that was sustained by the Fifth Circuit of the U.S. Court of Appeals last week.

The facts presented in the suit make clear just how idiotic it would be for President Biden’s Secretary of Defense, Lloyd Austin, to discharge these airmen for exercising their religious freedom.  Seventeen of the airmen are pilots.  Most of them fly the RC-135 reconnaissance aircraft out of Nebraska or the KC-135 refueling aircraft out of Kansas.  According to a study by the Rand Corporation that was commissioned by the Air Force, it takes a whopping $5.5 million to train an RC-135 pilot.  So, applying that number to the 17 pilots in the lawsuit, U.S. taxpayers have invested roughly $93.5 million in the training of these highly-skilled pilots.  It would be a colossal waste of taxpayer dollars to fire them.

And it’s not as if they can be replaced easily.  It takes years to train an Air Force pilot to fly a particular military aircraft.  It would be a massive security misstep to dump them from the military.

Especially now.  The RC-135 is one of the most sophisticated intelligence-gathering planes ever built.  Using highly-classified technology, the RC-135 is able to gather intelligence from all over the globe, including from areas far from the location of the aircraft.  A crew of interpreters and intelligence analysts flies aboard the plane to translate the information in real time.  The Biden Administration wants to fire the intelligence personnel aboard the aircraft too.  They are among the plaintiffs in the case, as are cyber warfare personnel in the Air Force.

The Biden Administration claims that it is taking the Russian threat seriously.  But it’s about to fire the pilots who gather intelligence on Russian activity, the translators who interpret that intelligence, and cyber warfare operators who defend the United States against Russian cyber attacks?

The Administration’s ideological quest to force vaccinations on every American is blinding it to the costs it is imposing on the country.  Biden is about to fire those military personnel who are needed right now to keep tabs on Russia and to keep Americans safe.

Legally, the airmen have a strong position.  RFRA and the First Amendment require the government to show a compelling government interest in refusing to make exceptions to the vaccine mandate.  But the government’s own actions reveal that they don’t really believe the interest to be compelling.  According to the Air Force’s own numbers published on March 1, 2022, the Air Force has already granted 2,980 medical and administrative exemptions to the vaccine mandate.  Evidently granting some exemptions is okay.  

Unless, of course, it’s a faith-based exemption. The Air Force has granted only 17 religious exemption requests, but has denied 4,637 of them. Of those religious accommodation requests that have been decided, 99.6% have been rejected.

The military claims that near-universal vaccination is necessary for force readiness.  But that too has been proven false.  All of the airmen in the lawsuit have been able to continue doing their work for the past two years, using weekly testing or other means of minimizing COVID-19 risks.  Indeed, two of the airmen in the suit have been deployed despite their unvaccinated status, without any impairment of their service.

And the country has also learned over the past five months that vaccinations are ineffective in stopping the transmission of the virus anyway.  Most government officials have been forced to admit that fact.  But not the Secretary of Defense.  He continues to press forward, firing service members who stand in the way of near-universal vaccination.

It’s a travesty when the very men and women who defend our Constitution from external threats are seeing their own constitutional liberties trampled.  Welcome to Biden’s America.

Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.  Prior to that, he was a law professor at the University of Missouri—Kansas City School of Law. An expert in immigration law and policy, he was also an informal adviser to President Trump.  He is currently General Counsel of the Alliance for Free Citizens.  His website is www.kriskobach.com.


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