Pentagon asks Supreme Court to allow it to stop the deployment of unvaccinated SEALs
The Biden administration is asking the U.S. Supreme Court to reinstate a major portion of its program mandating members of the military to be vaccinated against COVID-19.
In January a federal district court judge in Texas issued an order barring the Navy from requiring all SEALs to be vaccinated for COVID-19. The Fifth Circuit Court of Appeals upheld the order, and also refused to temporarily suspend its decision pending appeal.
In an emergency appeal to the U.S. Supreme Court, the Defense Department is arguing that the lower courts have usurped the president's core constitutional power — and by extension the military's power — to make decisions as to "which service members should be deployed to execute some of the military's most sensitive and dangerous missions." And that, the Pentagon said in its brief, imperils military readiness, noting that in one case the Navy has already been forced, against its best judgment, to deploy an unvaccinated Navy SEAL for duty on a close-quartered submarine.
Vice Chief of Naval Operations Adm. William K. Lescher filed a sworn declaration in the case, saying that the illness of even one member of a small SEAL team due to COVID-19 could compromise a mission. He said it would be "a dereliction of duty" to allow unvaccinated personnel into an environment in which they ... risk the lives of others."
The case now before the high court began when a group of Navy SEALs and other members of the elite Naval Special Warfare community went to court to challenge to the military's COVID-19 vaccination requirement, issued in August of 2021 after the FDA granted full approval of the vaccine. The challengers maintained that the vaccination requirement violated the Religious Freedom Restoration Act because it did not sufficiently accommodate religious objectors.
The military replied that mandatory vaccinations for the military date back to George Washington, who directed the inoculation of the Continental Army against smallpox in 1777. Currently, there are nine vaccines required for military members, with exemptions for medical reasons — most notably, pregnancy — and religious reasons. Military regulations set out rules procedures for disciplining and ultimately separating service members who refuse vaccination without an exemption.
The regulations also provide that "service members who are not vaccinated, regardless of exemption status, may be temporarily reassigned" based on "operational readiness and mission requirements."
Federal District Judge Reed O'Connor invalidated the vaccination mandate, finding that the challengers, prior to the mandate, had carried out their jobs safely. O'Connor said that the Navy lacks a compelling interest in mitigating the risks of COVID-19 because SEALs face other hazards — including "everything from gunshot wounds" to "parachute accidents" that may "create risks of equal or greater magnitude than the virus." He further said that allowing service members to remain unvaccinated would not prevent the Navy from achieving "herd immunity," given the high level of compliance in the military services.
A panel of the Fifth Circuit Court of Appeals, based in Texas, upheld the ruling, and also, like O'Connor, refused to temporarily suspend the compliance order pending appeal. The panel included two Trump appointees, Judges Kyle Duncan and Kurt Engelhardt, and Reagan appointee Edith Jones.
On Monday the government filed an emergency appeal at the Supreme Court, focused only on the challengers assertion that the Pentagon cannot change a service member's assignment if he or she is not vaccinated. As it did in the lower courts, it is seeking a partial stay for now. "SEALs and other members of the Special Warfare community can be called upon to deploy anywhere in the world on short notice, to complete high-risk missions under extreme conditions; and to operate in small teams and close quarters for extended periods," the government argues.
That alone, it maintains, is reason enough to leave the current regulations in place while the litigation proceeds on the merits.
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Transcript
AILSA CHANG, HOST:
The secretary of defense asked the Supreme Court today to restore the department's authority over the deployment of Navy SEALs who refuse to get a COVID vaccine. The request comes after a federal judge in Texas blocked the Navy from halting the deployment of SEALS who won't comply with the military's vaccine mandate.
Joining us now to discuss all of this is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi there, Ailsa.
CHANG: So doesn't the military fall under the purview of the president? I mean, why are courts even getting involved here?
TOTENBERG: Well, remember that the Fifth Circuit Court of Appeals - after the District Court judge, the Fifth Circuit declined to put a hold on the order by that judge. Then that order temporarily blocked the Pentagon from reassigning Navy SEALs and others who wouldn't comply with the COVID mandate. And the Defense Department's argument is exactly what you just said. And, in fact, not only are there nine other vaccines that have long been required for service members, but the tradition of mandatory vaccines dates back to the founding of the Republic, when George Washington ordered the troops of the Continental Army to be inoculated for smallpox in 1777.
So the Pentagon argues that the lower courts have usurped the president's core constitutional power and, by extension, the military's power to make decisions as to which service members are qualified for which missions. Therefore, the Pentagon argues, the lower court order imperils the very readiness of U.S. forces. And the chief of naval operations, Admiral William Lescher, filed a sworn declaration to that effect, saying that the illness of even one member of a small SEAL team due to COVID-19 could compromise a mission. The administration told the Supreme Court and the lower - that the lower court orders have already tied the hands of the military in sensitive missions, forcing the Navy against its best judgment in one case, for instance, to deploy an unvaccinated SEAL for duty on a close-quartered submarine.
CHANG: Wow. I mean, just having one person having COVID on a submarine seems risky. But, Nina, how did all of this litigation even begin?
TOTENBERG: Thirty-five Navy SEALs and other Navy Special Warfare personnel sued the Pentagon over its vaccine mandate, claiming that it violated their religious beliefs. In January, a federal judge in Texas sided with the challengers, saying that their constitutional and free exercise to religious expression had been violated in addition to violations of various statutes. The Fifth Circuit Court of Appeals upheld that order, and that court also refused to temporarily suspend its decision pending appeal. So the Defense Department appealed on an emergency basis to the Supreme Court.
CHANG: So what happens next at this point?
TOTENBERG: Well, the Supreme Court has told the challengers to file a response by 4 o'clock next Monday. I don't know what's going to happen, but the Biden administration has been pretty strategic about this emergency appeal, seeking to deal with the most immediate impact of the lower court order, namely the limit on its power to reassign military personnel who have not been vaccinated.
So the bottom line - one can never be sure, but there are lots of conservatives on this court who believe in strong presidential powers when it comes to the military. So I think I'd be surprised if the Biden administration doesn't prevail on this one.
CHANG: That is NPR's Nina Totenberg. Thank you, Nina.
TOTENBERG: Thank you, Ailsa.
[POST-BROADCAST CORRECTION: In this story, we incorrectly call Adm. William K. Lescher the chief of naval operations. He is the vice chief of naval operations.] Transcript provided by NPR, Copyright NPR.
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