Another vax--this time from a circuit court

3/8/2022

(Update 08032022) Here is the SG's Application for a partial stay of the injunction in U.S. Navy SEALs v. Biden, et. al.

22-10077-cv0.pdf
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27 Comments

Lone Bear

3/1/2022 11:35:58 am

That logic is one of the stupidest thing I’ve read, and the lack of deference given to operational leaders by the court is stunning.

former TC

3/1/2022 06:45:33 pm

Seriously. As if special operators don't engage in any sort of risk mitigation to avoid all those other risks the court lists.

Philip D. Cave link

3/1/2022 02:10:08 pm

https://tinyurl.com/96v9dkxf

As you know, I support the vaccination program. To me this is necessary to preserve the health and welfare of all servicemembers, morale of the force as a whole; and to ensure the ability of units to accomplish their mission in peace or war.

There are plenty of reports of units unable to carry out the mission because of COVID in the unit. Some are ships that cannot get underway. See, e.g., https://tinyurl.com/2bhy2frc or https://tinyurl.com/356w46fv

When someone comes down with COVID that means their shipmates have to work longer and harder to "cover" for the absent shipmate. Are you happy with that? Are you happy with that when, for example, indications are that Sailors are already overworked. See, e.g., https://tinyurl.com/22y6v2ry

Unlike Anthrax, COVID is contagious. So I reject the right to expose others to an illness. This is a reason we don't let kids go to school without having been vaccinated against a relatively long list of diseases and illnesses.

As to medical exceptions, I'm willing to accept that difference because the exception is based on the likelihood of death or injury to the person vaccinated. That to me is a reasonable and acceptable distinction.

Their are risks of injury and death in military operations, even when not in combat. But, do not leaders and planners and those on the ground take steps to protect against or to minimize that risk?

How will the Supreme Court respond? (Interestingly the Circuit Court does not address potentially relevant SCOTUS opinions, including,

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 military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. See, e. g., Chappell v. Wallace, supra, at 300; Greer v. Spock, 424 U.S. 828, 843-844 (1976) (POWELL, J., concurring); Parker v. Levy, supra, at 744. The essence of military service "is the subordination of the desires and interests of the individual to the needs of the service." Orloff v. Willoughby, supra, at 92.

These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. See, e. g., Chappell v. Wallace, supra, at 304. But "within the military community there is simply not the same [individual] autonomy as there is in the larger civilian community." Parker v. Levy, supra, at 751. In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. See Chappell v. Wallace, supra, at 305; Orloff v. Willoughby, supra, 93-94. Not only are courts "'ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,'" Chappell v. Wallace, supra, at 305, quoting Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 187 (1962), but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation's military policy. "[Judicial] deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U.S. 57, 70 (1981).

Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S. Ct. 1310, 1313 (1986).

Since O'Callahan, we have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated. See, e. g., Goldman v. Weinberger, supra, at 509-510 (free exercise of religion); Chappell v. Wallace, 462 U.S. 296, 300-305 (1983) (racial discrimination); Rostker v. Goldberg, supra, at 64-66, 70-71 (sex discrimination); Brown v. Glines, 444 U.S. 348, 357, 360 (1980) (free expression); Middendorf v. Henry, 425 U.S. 25, 43 (1976) (right to counsel in summary court-martial proceedings); Schlesinger v. Councilman, 420 U.S. 738, 753 (1975) (availability of injunctive relief from an impending court-martial); Parker v. Levy, 417 U.S. 733, 756 (1974) (due process rights and freedom of expression).

Solorio v. United States, 483 U.S. 435, 448, 107 S. Ct. 2924, 2931 (1987)

Joshua Kastenberg

3/1/2022 03:14:45 pm

A few minutes ago, an op-ed was posted by a person named Mark Joseph Stern titled "Trump Judges are now a Threat to National Security" in Slate. Here is the link: https://www.msn.com/en-us/news/us/trump-judges-are-now-a-threat-to-america-s-national-security/ar-AAUtOCC?ocid=entnewsntp

I am not advocating that he is right, and I deplore attacks on the judges, even though I disagree with the lower court and this decision.

But, it does appear that the judiciary is getting into an area that for decades the courts have proclaimed to be sacrosanct to the elected branches of government as articulated in Orloff v. Willoughby and later on. And to this end, I have to wonder whether, is a modern day Sandy Koufax were in uniform and ordered to fight on a Friday night, could he or she first go to the Article III courts. After all, Koufax would not play baseball on Friday nights and during Saturdays either (of course when the Dodgers signed him they understood this and adjusted the pitching rotation). Or, are the judges playing favorites with a group of people in uniform who happen to share their political and social values.?

And what to make of the "distempered language" of the lower court toward the administration?

William Cassara

3/2/2022 01:58:05 pm

I am surprised by the language of many judges lately. Unfortunately the bench is more and more a political office. Judge Brown-Jackson, Judge Mehta and others have used very harsh language towards the Trump administration, and several judges (such as the one in this case) have used similar language towards the Biden administration. So CNN or Fox or whoever gets to print about how a Trump or Biden rule was slapped down and quote the language of the court to further their political agendas.

Concerned Citizen

3/1/2022 08:04:03 pm

The opinion was based on the Religious Freedom Restoration Act (RFRA) which Congress passed to restore the application of strict scrutiny for religious freedom burdens. RFRA applies to the military. Quoting that one paragraph and characterizing as the basis of the whole opinion seems somewhat misleading.

Seems like the right result under RFRA. Maybe RFRA shouldn't apply to the military but this is hardly some sort of judicial usurpation - the military usually bends over backwards to accommodate freedoms of religion, probably the reason there aren't more cases on it.

I think a lot of the heartburn is that people think these people are insincere, which I would agree with, but having courts question that seems even worse.

Cap’n Crunch

3/2/2022 11:02:48 am

Some folks are arguing deference to the military operational decisions on these exemptions. And certainly from a First Amendment perspective (at least for neutral and generally applicable laws) there is case law that supports the deference argument.

But Congress gets to make rules for the land and naval forces. And Congress passed a statute (RFRA) that came after the cases cited above. Does Congress not get to make the rules? Wouldn’t that be terribly un Democratic if they cannot? Could Congress not have codified the deference people are arguing for in RFRA (because it is contained nowhere in the text of RFRA).

Maybe deference is important. Maybe it’s critical. But doesn’t Congress get to make the rules? I think in the face of an unambiguous statute, the wailing and gnashing of teeth and arguments about public policy has to give way to the unambiguous text of the applicable statute.

Brenner M. Fissell

3/2/2022 12:55:34 pm

No one disputes that RFRA applies. The issue is the application. A vaccination requirement for a respiratory illness in the context of military service should pass strict scrutiny. The compelling interest is obvious, and given the need for in-person service without risking others, it is also narrowly tailored. Thus, the screenshot's discussion of compelling interest is the central issue. The court is saying that there is no compelling interest in reducing risk of preventable illness and death because the SEALs' jobs involve risk of death. Does that make sense to you?

Concerned Citizen

3/2/2022 03:18:31 pm

I think that paragraph does come off poorly, but I also don't think it is key to the opinion. It seemed like the court's position was that it was a compelling interest to protect Sailors from COVID, but that the vaccine policy wasn't narrowly tailored - the Navy just sort of hand-waived the analysis of whether there was any other way of protecting them and the mission, and the Sailors here put on evidence that there were more narrowly tailored means of protecting them and the mission, which the court found compelling.

Maybe there is an argument that some of the pre-Employment Division v Smith deference cases should be read into RFRA, but I am not sure I have seen that made before or if it would be supported in any kind of case law (just spit balling here).

Also, the President could just ask Congress to pass a law exempting mandatory vaccines, or some other aspect of military service, from RFRA, or just changing the way that RFRA applies to the military - directing some level of deference. Mandatory vaccines would be something that would easily be permissible under 1st Amendment case law - it's a neutral law of general applicability - but Congress passed a law that that isn't the standard.

Anon

3/3/2022 12:46:55 pm

Not sure if I agree that this easily passes 1A muster.

It definitely passes muster under Smith and pre-2018ish 1A cases, but the more recent Supreme Court opinions on the issue find that if exceptions are allowed for some reasons, but not for religious reasons, the law is not one of neutral applicability as it discriminates against religion. It is thus an all or nothing approach....you can have a religious exemption or no exemptions at all.

Not sure I agree with the Supreme Court on this, but that is what the recent case law is. That is also why the 5th Circuit focuses on the availability of medical exemptions but not religious exemptions.

Followthescience

3/3/2022 01:31:59 am

"Compelling interest in reducing risk of preventable illness and death." This falls apart looking at the absolute risk reduction of vaccination. Where very few young, healthy operators would become seriously ill without vaccination, the absolute risk reduction from even a perfect vaccine is small. The health benefit is small. And now that most have been naturally infected, the risk reduction and benefits are even smaller.

The government tells us that this isn't about risk reduction every day that it allows single dose J&J vaccines to qualify as full vaccination.

The compelling government interest cant be a reduction in serious illness and death Where this is already unlikely. The only compelling government interest I see is one of deployability and the likelihood that host nations will require vaccination from us.

But find me a senior government physician willing to say this in front of the cameras or for the record in court. That's why my name is hidden here.

Philip D. Cave link

3/3/2022 12:05:54 pm

"The only compelling government interest I see is one of deployability [and overworked Sailors having to work harder to accommodate for their shipmates absence]."

Isn't that the point? The military is a tool for national security. The ability to deploy fully crewed-up and carry out a mission is central. Leadership has decided that vaccinations support the mission and so have ordered them because of or perhaps in spite of the science.

You argue the benefits are small. Scientifically perhaps that's true. But, a one or two percent decrease in a crew's readiness has a potential bigger effect. Many years ago I had to process over 500 NJPs because of UA and missed movement to deploy for a cruise (around 6-7% of those ordered to be on board). I remember the impact that had on the crew who made it on time and the preparations for arriving on station ready to go if needed. So, I can imagine the effect on a unit of even a small percentage of the crew being absent or unavailable because of COVID.

Philip D. Cave link

3/2/2022 03:09:19 pm

To be clear, application is not an absolute.

(b)Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person--

(1)is in furtherance of a compelling governmental interest; and

(2)is the least restrictive means of furthering that compelling governmental interest.

EarsMacGee

3/3/2022 11:45:12 am

Followthescience. Perhaps you have shielded your name for other reasons. BTW this site is for legal discourse and frankly your comments fall outside of that arena. If you want to tell the world that you disagree with vaccines fine. But per the topic here - whether the judges applied the law to the military correctly or not, or what the acceptable realm of judicial conduct might be - your comments are neither helpful nor a contribution of any help

Donald G Rehkopf, Jr.

3/3/2022 12:19:47 pm

When Congress was considering the RFRA, both houses held extensive hearing, which included considerations of its potential impact on the military - this legislative history seems to have been ignored.

The House Report on RFRA states:

"The Committee recognizes that the religious liberty claims in the context of . . . the military present far different problems ... than they do in civilian settings. . . . [M]aintaining discipline in our armed forces, [has] been recognized as [a] governmental interest[] of the highest order."

The Senate Report is even more explicit:

"The courts have always recognized the compelling nature of the military’s interests in these objectives [maintaining good order, discipline, and security] in the regulation of our armed services. Likewise, the courts have always extended to military authorities significant deference in effectuating these interests. The committee intends and expects that such deference will continue under this bill."

Anon

3/3/2022 04:05:09 pm

A majority on the Supreme Court don’t care about legislative history. Deference could have been in the text and it’s not.

Poster

3/4/2022 08:46:12 am

I think formerTC pretty much sums it up. Risk mitigation plays a big part. There are charts, lists, and opord sections for risk. A good part of the process is proportion. And if we're following the science, we'd be honest to say the risk from this vaccine is so much less than what it is trying to mitigate, the disease. This is just a court substituting it's judgement for a commander.

Talk about hijacking a religion.

Philip D. Cave link

3/4/2022 12:10:17 pm

What I find interesting is that DoD reports over a 97% vaccination rate. That must mean a bunch of Christians have balanced everything out (or understand the concept of obedience to orders) that they have come down on the side of care for others as well as themselves.

Everyone should look out not only for his own interests, but also for the interests of others. – Philippians 2:4

Anon

3/4/2022 05:49:24 pm

https://slate.com/news-and-politics/2022/03/covid-vaccine-judge-navy-warship-religious-freedom.html

Different case with an even more ridiculous result. These cases are the biggest threat to good order and discipline that I have experienced.

Philip D. Cave link

3/5/2022 07:10:37 am

Interestingly, we have just got a new client. He's accused of UA and missing movement.

You guessed, we are going to try on a defense of necessity. CAAF hasn't effectively approved the necessity defense, and to the extent it has it is very fact intensive. One element is that the threat and necessity has to come from someone else.

But here we go.

Joshua Kastenberg

3/5/2022 02:30:03 pm

The author at SLATE, Mark Joseph Stern has been challenged in the past. However, the judge's Wikipedia entry references this article. I have no idea whether his reporting is accurate or not. Here is another report that doesn't contain his editorializing:

https://www.wtsp.com/article/news/national/military-news/tampa-judge-injunction-military-members-religious-exemptions-vaccine/67-85390421-fa23-4513-9439-75a4757d0a47

I have a more direct observation and question for your consideration. In Tarble's Case, 80 U.S. 397 (1871), the Court, in an opinion authored by Justice Stephen Field , determined that courts-martial review and judicial review over military authority were solely for the federal judiciary and that the state courts could no longer issue habeas writs on federal officers. This ruling makes sense even though Field's only citation to prior case law was Ableman v. Booth, overturning a state decision arising out of the Fugitive Slave Act cases.

But Field did put something into Tarble's case that is worthy to ask here in regard to why the Court had to act and what the what the motivations of the trial and appellate court judges are in regard to the vaccine mandate.

In the Civil War a number of "copperhead" judges in the state courts claimed they acted to defend the constitution - and perhaps believed so - but in reality were really aiding the Confederacy:

"The experience of the late rebellion has shown us that in times of great popular excitement there may be found in every state large numbers ready and anxious to embarrass the operations of the government, and easily persuaded to believe every step taken for the enforcement of its authority illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service, in the hands of parties thus disposed, might be used, and often would be used, to the great detriment of the public service. In many exigencies, the measures of the national government might in this way be entirely bereft of their efficacy and value."

Thus, I wonder whether a judge who gives the Navy the choice of sending the commander of his desire out to sea or not sending a ship forward at all, is taking the place of the "copperhead judges" of 1861-65.

Observer

3/5/2022 04:34:52 pm

Interesting point.

Legally, RFRA is clearly unconstitutional as applied to this case. Congress can’t pass a law that abrogates the inherent executive power the President has under Article 2. Placing officers in command is at the heart of the Article 2 “executive power”.

Its the same logic on why the War Powers Act is unconstitutional. Can’t believe the judge missed such a basic point of constitutional law.

Cap'n Crunch

3/8/2022 12:42:56 pm

That is quite an expansive role that you give to POTUS as the Commander in Chief. And seems to completely ignore the power delegated to Congress in Article I, Section 8, to "To make rules for the government and regulation of the land and naval forces;" Congress could, if it wanted (and it has) provide qualifications for officers, who the President appoints. The Senate has confirmation power over Presidential appointments to O-4 and above. Congress can restrict (and has restricted) the Presidents ability to remove officers from the service, absent procedures that have due process, such as court-martials. Clearly, a vaccine mandate is a rule that deals with the government of naval and land forces. And RFRA, a statute, places limitations on SECDEF and POTUS' ability to provide rules that conflict with statute.

The better question, raised above by Phil Cave, is whether these mandates meet the "least restrictive means" test. Phil says they do, in part, arguing deference to military authority coupled with the vaccines being effective. I argue they do not, because, among other things, the military grants robust exemptions to the requirement for administrative and medical purposes -- and that is before we even get into the fact that the J&J vaccine (which the military permits) has an effectiveness of under 70%, and recent studies show natural immunity provides better and longer lasting immunity than the J&J vaccine in particular.

Observer

3/8/2022 09:59:22 pm

The expansive role is mandated by the Constitution and the Constitution overrides any statute. It is not even a close question.

Congress clearly has a constitutional role in making rules that govern the armed forces and in the confirmation process for officers, but those are not operational decisions. Operational decisions (such as deciding whether a Navy destroyer can deploy, or who the exact commander of an Army Brigade is) is a purely executive function. The Commander-in-chief has almost unlimited discretion here and his constitutional power is the strongest for these decisions.

The Supreme Court has also recently found quite a few restrictions on the President's ability to remove executive officers unconstitutional. If Congress passed a law stating that the President could not fire a commander (from a specific command rather than from the military generally), it would be clearly unconstitutional under this precedent. Can you think of any law that prohibits the President from removing a commander from their position?

I am not saying that Congress cannot impose a vaccine mandate on the military. It clearly could. I am not saying that Congress could not pass RFRA and apply it to the military. It clearly could.

But Congress cannot use these laws to infringe on the executive's inherent power to fire commanders. That is a purely executive decision. The courts interpreting RFRA to impose a bar on the executive's ability to replace a commander raises constitutional concerns and the canon of constitutional avoidance mandates that this interpretation be rejected.

Philip D. Cave link

3/8/2022 06:17:25 pm

https://tinyurl.com/yckm9nex

Cap’n Crunch

3/8/2022 09:44:41 pm

Phil: Judge Merrydey issued, not long ago, a response to most of what the Government is claiming about the warship being able to deploy and alleged lack of confidence in denying the Government a stay to the injunction ruling. I thought the ruling was fairly well written and thorough. I would upload it but this comment app doesn’t let me do that. But it’s worth the pull off PACER.

If the Navy is violating the law, in denying the CO an exemption, and claims lack of confidence in the CO as a result of the Navy’s illegality, it can hardly go into court and wrong it’s hands about the CO being a bad guy and not deploying a ship because Navy leadership is having a temper tantrum over the court loss.

Philip D. Cave link

3/9/2022 05:58:32 pm

email to us at caaflog@nimj.org, please.

Your comment will be posted after it is approved.

CAAFlog

Another vax--this time from a circuit court

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