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Staff photo by Erin O. Smith / U.S. Rep. Scott DesJarlais speaks during the grand opening event for the Nokian Tyres production plant Wednesday, Oct. 2, 2019 in Dayton, Tennessee.

NASHVILLE — Two Tennessee congressmen are among 16 U.S. House Republicans warning U.S. Defense Secretary Lloyd Austin that it's "illegal" for him to mandate COVID-19 vaccinations for active-duty troops absent the medicine's full approval by the Food and Drug Administration.

"The law of the United States is clear," reads the letter, signed by Reps. Mark Green of Portland and Scott DesJarlais of Sherwood. "Mandatory vaccination is illegal for military personnel prior to complete approval."

The lawmakers' assertions — some are rejecting them, saying the president has clear authority to impose the requirement — comes after President Joe Biden asked Pentagon officials recently to look at adding the COVID-19 vaccine to the military's list of required shots. According to multiple news accounts, a decision is expected soon.

Use of the Pfizer, Moderna and Johnson & Johnson vaccines has been previously approved for emergency use against COVID-19. The vaccines have been shown to be highly effective. The manufacturers are pushing for their vaccines' full FDA approval.

The lawmakers' letter cites a 2004 preliminary injunction issued by U.S. District Judge Emmett G. Sullivan in which six National Guard members challenged the Pentagon's order that troops receive anthrax vaccinations.

But while the congressmen state the issue is "clear" on needing full FDA approval before active armed services members can be required to get them, Sullivan in his opinion specifically noted the authority of a president to act by waiving the need for full FDA approval.

Sullivan, a senior judge in Washington, wrote that "in the absence of a presidential waiver, defendants are enjoined from inoculating service members without their consent." The legal challenge bounced around in federal courts for several years.

State Rep. John Ray Clemmons, a Nashville Democrat and attorney, noted in a statement to the Times Free Press on Friday that while Green and other GOP lawmakers' statement is accurate, it "fails to acknowledge the ability of the president to issue a waiver pursuant to federal law.

"The case [Green] cites references the president's ability to grant such a waiver if he determines, in writing, that obtaining consent is not in the interests of national security," Clemmons said.

And a July 6, 2021, U.S. Justice Department memorandum opinion on the issue states the section in the 2003 legislation was "designed to ensure that individuals are informed of an option to accept or refuse administration of a product."

But the opinion, provided to President Joe Biden's deputy counsel, goes on to state it "may be waived only by the President only if the President determines, in writing, that complying with such requirement is not in the interests of national security."

Biden has also directed that all federal workers be vaccinated or face frequent testing and travel restrictions.

In a statement, DeJarlais, a House Armed Services Committee member, said his intent in signing on to Green's letter was to put Pentagon Chief Austin "on notice that a military vaccine mandate can only be made for vaccines that have full approval."

He called vaccinations an "individual health decision that should be made in combination with our primary care doctor who knows your health history. Mandates are a one-size-fits-all narrative."

The congressman noted he is also cosponsoring legislation that would ban any COVID-19 vaccine mandate for U.S. armed forces members. That would appear to be an uphill battle given Democrats' control over both the House and Senate.

Green, a former state senator, made news several years ago when he told soon-to-be congressional constituents following his 2018 election that he believed vaccines might be causing autism in children.

In a promotion video in May aimed at getting people more comfortable in seeking COVID-19 shots, Green announced he had received his vaccinations, noting that "as a doctor, I made the decision to get vaccinated against COVID-19. I know the facts. And I think it's the right choice to make."

He called the vaccines "safe and effective. Each vaccine was tested on tens of thousands of people."

In their letter to Secretary Austin, Green and the other lawmakers said that "to be clear, we believe COVID-19 vaccines are not only a testament to American ingenuity, but are also safe and effective. We commend the men and women of the Department of Defense for their tireless efforts in spearheading Operation Warp Speed and developing this vaccine in record time and under immense pressure.

"Despite that," the letter asserts, "it is clear that the mandate that you are considering is an unprecedented violation of federal law. We urge you to reconsider and would welcome the opportunity to discuss this with you. Thank you for your service to our Nation."

Republican lawmakers say that if Biden does issue the waiver, it will be challenged in court. Others signing on to Green's letter include Rep. Buddy Carter, R-Ga.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.

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