Republican judges appear unwilling to acknowledge that they do not command the United States military.
The United States Navy requires nearly all of its uniformed personnel to be vaccinated against Covid-19. Well over 99 percent of active-duty US sailors have complied with this requirement, leaving only a handful who refuse to obey a direct order.
Yet, rather than facing the consequences that typically face a service member who defies a lawful order from a superior, several Navy personnel who didn’t want the vaccine found Republican judges willing to exempt them from the Navy’s policy. The result is a pitched legal fight over just who is in command of the military: President Joe Biden and the array of civilian officials and military officers who answer to him as commander-in-chief, or a judiciary dominated by Republicans.
Last January, Judge Reed O’Connor, a former GOP Capitol Hill staffer known for his failed attempts to repeal Obamacare and to undermine marriage rights for same-sex couples, ruled in favor of 35 Naval special warfare personnel, 26 of whom are SEALs, who sought a religious exemption from the vaccination policy. Then, in late February, an especially right-wing panel of the conservative United States Court of Appeals for the Fifth Circuit refused to stay O’Connor’s decision. This first case is called U.S. Navy SEALs 1-26 v. Biden.
In mid-February, meanwhile, Judge Steven Merryday, a George H.W. Bush appointee, granted similar relief to two officers who claim that their religion requires them to defy the order to get vaccinated. That case is called Navy SEAL 1 v. Austin.
These decisions are egregiously wrong under current law. As the Supreme Court held in Goldman v. Weinberger (1986), “the essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’” Accordingly, the Court has consistently called upon judges to defer to military commanders, and ultimately to elected officials charged with overseeing the military, in cases impacting military readiness.
And, lest there be any doubt, O’Connor’s and Merryday’s decisions are already undermining US national security. None of the Navy personnel in the suits have been vaccinated while waiting for their cases to play out. And Merryday issued an excessively broad order forbidding the Navy from taking “any adverse or retaliatory action … in conjunction with” the plaintiffs’ requests for religious exemptions.
As Slate’s Mark Joseph Stern reports, one of these two plaintiffs is the commander of a $1.8 billion warship. The Navy wants to remove this officer from his command due to a pattern of insubordination, disregard for the safety of men and women under his command, and dishonesty toward his superiors, including meeting in person with dozens of other Navy personnel while he was infected with Covid-19.
That has led to a standoff between military commanders, who refuse to deploy this officer’s ship until he is removed from command, and Judge Merryday, who insists that nothing can be done to its insubordinate commander. For the time being, that means that a 10,000-ton destroyer and the 320 Naval personnel who work on that vessel are, in the administration’s words, “indefinitely sideline[d].”
The Biden administration formally asked the Court to issue a partial stay of O’Connor’s decision on Monday, asking the justices to block O’Connor’s order to the extent that it “usurps the Navy’s authority to decide which service members should be deployed” on which missions. And it is likely that the Supreme Court will eventually step in and reverse O’Connor and Merryday.
The Court recently upheld a federal rule requiring most health care workers to get vaccinated, and health care workers, unlike members of the military, do not literally sign away their right to refuse a direct order. The Court has also fairly consistently turned away health care workers seeking religious exemptions from vaccine mandates.
But until someone provides adult supervision to O’Connor and Merryday, these two Republican judges will continue to behave as if they, and not President Biden, sit at the apex of the military’s chain of command.
O’Connor’s and Merryday’s orders undermine national security
In the past, the Supreme Court has been crystal clear that judges are not supposed to interfere with the military’s judgments about which service members should be deployed on which missions. As the Court held in Gilligan v. Morgan (1973), “it is difficult to conceive of an area of governmental activity in which the courts have less competence” than “the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force.”
The Navy’s senior commanders, moreover, have been equally clear that O’Connor’s and Merryday’s orders undermine national security.
Consider, for example, a statement from Capt. Frank Brandon, the direct superior of the insubordinate destroyer commander (the destroyer commander is not identified by name in court filings). According to Capt. Brandon, this commander reported to work for two days while he was experiencing Covid-19 symptoms, and even spoke at a briefing attended by 50-60 other Navy personnel. Yet he didn’t even get tested for Covid-19 until Brandon ordered him to do so. Then the commander tested positive.
Similarly, Brandon says that this commander “intentionally deceived me” regarding where he would travel when he took leave from his ship.
Capt. Brandon’s statement is supplemented by another from Vice Admiral Daniel Dwyer, commander of the Navy’s Second Fleet, who says that “under no circumstances would the Navy typically deploy a commander in an operational capacity with whom his or her superior officers have such reservations.” But, thanks to Judge Merryday’s order, neither Brandon nor Dwyer can remove this insubordinate officer from command.
Or consider the words of Adm. William Lescher, the Navy’s second-highest uniformed officer in the Navy, regarding why O’Connor’s order is particularly harmful to military readiness.
Among other things, Lescher explains that many Navy vessels have only limited medical personnel and health care facilities. So, if a member of the ship’s crew becomes seriously ill, that “would require a return to port or an emergency medical evacuation by helicopter” — potentially forcing the entire ship to accommodate one unvaccinated service member.
Special forces personnel, moreover, often deploy in very small units, so one member becoming sick can be a big blow to the team. And, the Navy argued, special operations “are often conducted in hostile, austere or diplomatically sensitive environments” where a severely ill service member might not be able to obtain local medical care and may need to be evacuated by the Navy — an operation that is itself dangerous and that could force the sick service member’s fellow sailors to risk their lives on his or her behalf.
For these reasons, the Navy typically disqualifies personnel with fairly minor health risks from special warfare duties altogether. As the Justice Department explains in its brief, “the long list of disqualifying conditions includes, for example, certain forms of sleep apnea, severe allergies, dental issues requiring frequent care, and any condition requiring frequent medication.”
And yet, O’Connor’s order forces the Navy to deploy special operations personnel that the military has determined are medically unsuitable for such work. According to the Justice Department, O’Connor’s order forced the Navy to send one of the plaintiffs “to Hawaii for duty on a submarine against its military judgment.”
O’Connor’s and Merryday’s orders are egregiously wrong
Ordinarily, when someone claims that the federal government has burdened their religious beliefs, they may sue the government under a statute known as the Religious Freedom Restoration Act (RFRA), which provides that the federal government may not “substantially burden a person’s exercise of religion” unless it does so “in furtherance of a compelling governmental interest” and uses the “least restrictive means of furthering that compelling governmental interest.”
The Biden administration persuasively argues in its brief that preventing the spread of Covid-19 and ensuring military readiness are both compelling interests, and that a vaccine mandate is the least restrictive way of achieving these goals. But it really shouldn’t even need to make this argument, because the Court has repeatedly held that judges should be exceedingly reluctant to question the military’s decisions regarding its personnel.
The Court has held that judges should defer to the military even when such deference limits the constitutional rights of potential service members. Ordinarily, for example, the Court has held that “a party seeking to uphold government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification.” In Rostker v. Goldberg (1981), however, the Court permitted the Selective Service System to discriminate against men by requiring them, and not women, to register for the draft.
In fact, the Court has specifically held that judges should defer to the military when a service member claims that their religious liberties are burdened by an order from a superior. That was the holding of Goldman, which held that a Jewish officer was not exempt from an Air Force regulation prohibiting him from wearing a yarmulke, the traditional Jewish skullcap, while he was indoors.
“Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society,” the Court explained in Goldman, adding that granting an exemption would undermine service members’ “habit of immediate compliance with military procedures and orders” — a habit that “must be virtually reflex with no time for debate or reflection.”
In fairness, Goldman was decided nearly four decades ago, and the Court’s current majority is far more sympathetic to the concerns of religious objectors than the justices who sat in the 1980s. And generally, the Court’s deference to the executive branch on national security might merit some reevaluation. But the Court concluded as recently as 2018 that judges should defer to the president on matters of national security, even when religious liberty is at stake.
That was the holding of Trump v. Hawaii (2018), which upheld former President Donald Trump’s policy preventing people from several predominantly Muslim nations from entering the United States. “‘Any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions,’” the Court explained in Hawaii, “‘should be adopted only with the greatest caution,’ and our inquiry into matters of entry and national security is highly constrained.”
All of which is a long way of saying that O’Connor’s and Merryday’s decisions have no basis in law.
Something needs to be done to prevent rogue judges from issuing lawless orders that bind the entire country
It is likely, for a variety of reasons, that the Supreme Court will not tolerate O’Connor’s and Merryday’s orders. Though the Court 6-3 Republican majority struck down a Biden administration rule requiring most workers to get vaccinated, it has otherwise shown a degree of moderation in vaccination cases. Among other things, the Court has consistently rejected requests from religious objectors claiming that their faith entitles them to remain unvaccinated, despite a state or federal policy requiring vaccination.
Similarly, while the Court’s current majority appears eager to rewrite many longstanding legal doctrines, they’ve given few outward signs that they will overrule the many previous Court decisions warning judges not to micromanage the military.
But O’Connor’s and Merryday’s orders highlight a pervasive problem within the judiciary. It is too easy for litigants to shop around for sympathetic judges who are willing to issue orders that most judges would conclude are lawless. And it takes far too long for the Biden administration to secure an order from a higher court overturning these rogue judges’ decisions.
Moreover, while the Supreme Court may step in to halt truly egregious decisions by conservative judges like O’Connor and Merryday, the fact that the Court is dominated by movement conservatives creates a partisan imbalance. When Republican judges issue dubious orders blocking Democratic policies, the Court often lets those orders remain in effect for months — if not forever. When lower court judges block Republican policies, by contrast, the Roberts Court frequently intervenes with great alacrity.
Oddly enough, archconservative Justice Neil Gorsuch offered one of the most persuasive arguments against allowing a single federal judge to block a federal policy on a nationwide basis in 2020.
“There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal,” Gorsuch wrote. If every one of these judges can halt any federal policy, he added, then “the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.”
Hundreds of judges could potentially uphold a policy, but if the government is handed “a single loss,” then “the policy goes on ice.”
It’s unclear whether Gorsuch is still bothered by these kinds of single-judge, nationwide injunctions now that a Democrat is in the White House. But if Gorsuch and others like him want to prevent judges like O’Connor and Merryday from declaring themselves commander-in-chief, there’s a fairly straightforward policy solution.
As law professor Steven Vladeck writes, Congress or the Court could require all lawsuits seeking to block a federal policy to be heard by a three-judge panel, rather than by a single judge. And the government could also gain the power to transfer these cases to a federal court in DC — thus preventing plaintiffs from shopping around for sympathetic judges.
Any lawsuit seeking to block a federal policy on its face should have to be heard by a three-judge district court. And the federal government should have the right to transfer any such suit to the D.C. district court.
Otherwise, we’re in for decades of government by injunctions.
— Steve Vladeck (@steve_vladeck) March 5, 2022
Such a policy could be implemented by Congress, but it could also potentially be implemented by the justices themselves. Federal law provides that “the Supreme Court shall have the power to prescribe general rules of practice and procedure” for federal courts.