Secretary of Defense Lloyd Austin

The U.S. Department of Defense on Monday filed an emergency application with the U.S. Supreme Court asking the nine justices to restore the Pentagon’s deployment authority over Navy SEALs who refuse to be vaccinated against COVID-19.

“The Secretary of Defense has determined, as an exercise of his military judgment, that vaccination against COVID-19 is necessary to protect servicemembers and defend the American people,” the filing by Solicitor General Elizabeth Prelogar argues.

The request comes after the U.S. Court of Appeals for the Fifth Circuit refused to stay an injunction that blocks the Biden administration’s vaccine mandate in a ruling issued last week. The preliminary injunction against the mandate was originally granted by a Fort Worth-based district court in early January after dozens of SEALs sued.

That first ruling was issued by George W. Bush-appointed U.S. District Judge for the Northern District of Texas Reed O’Connor, known for attempting to strike down the entirety of the Affordable Care Act, or Obamacare, in December 2018 after the individual mandate was ruled unconstitutional. The Fifth Circuit later declined to hear a challenge.

According to the filing, the lower court decisions have upended the military command structure by acceding to the SEALs’ requests and placed judicial decision-making ahead of military decisions over “deployment, assignment, and other operational decisions.”

Additionally, the Biden administration notes, the injunction also bars the Navy from changing any of the servicemembers’ assignments, “including special-operations deployment”s in light of “the risks posed” by the SEALs’ refusal to be vaccinated against COVID-19.

“The court’s preliminary injunction not only prohibits the Navy from applying the COVID-19 vaccination requirement to respondents, but also requires the Navy to assign and deploy them without regard to their lack of vaccinations notwithstanding military leaders’ judgment that doing so poses intolerable risks to safety and mission success,” the 42-page request notes. “Indeed, the Navy has informed [the DOD] that the injunction has already compelled it to send one respondent to Hawaii for duty on a submarine against its military judgment.

The filing excoriates the lower courts as playing robed, would-be commanders:

“[J]udges are not given the task of running the Army” or the Navy, and it is the Executive officials charged with protecting our national security and defending our borders — not courts — who have authority to determine servicemembers’ fitness for duty and assignments.

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The problems with judicial intervention in military affairs are not limited to formal separation-of-powers concerns, but include practical ones, too.

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The preliminary injunction here flouts those principles. By requiring the Navy to deploy and assign respondents without regard for their vaccination status, the district court effectively inserted itself into the Navy’s chain of command, overriding military commanders’ “professional military judgments” about operational needs and requirements.

Calling the injunction an “extraordinary and unprecedented intrusion into core military affairs,” the Biden administration makes clear they are only asking for limited relief by not taking issue with part of the district court ruling that foreclosed against the SEALs being subject to “discipline or discharge for remaining unvaccinated.”

“Instead, the government sought a stay only insofar as the injunction ‘precludes the Navy from considering [respondents’] vaccination status in making deployment, assignment, and other operational decisions,” the filing notes. “The lower courts denied even that modest relief. [The Supreme] Court should grant a partial stay.”

The filing asks for the partial stay to take effect “pending completion of further proceedings in the court of appeals and, if necessary” if the DOD files a petition for a writ of certiorari with the high court.

“[W]hatever the merits of respondents’ challenges, the public has no interest in an injunction that requires the Navy to subordinate its professional judgment that vaccination is necessary for military readiness to the lower courts’ contrary views,” the filing states.

The SEALs have until Monday of next week to file their response.

[image via screengrab/YouTube]

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