5th Circuit Court of Appeals: Is it trying to take control over part of the Navy?

Apparently, a single Trump-appointed judge in the 5th Circuit is mandating that unvaccinated U.S. Navy troops be deployed in a certain way, at a specific place with specific duties, attempting to override the authority of the president as commander-in-chief.

Anyone hear about this? Is the article full of crap, or…?

Not full of crap, but it is rather full of hyperbole. It’s more of an editorial than a news item, so I don’t think that an average person would come away from reading it with a very good understanding of what’s going on. Courts get complicated.

Basically, the Navy wants people to have to get vaccinated in order to participate in regular Navy-type situations. What the court is saying is that they can’t do that in blanket fashion (which is bad, in my opinion, to be clear). It’s not that the judge is saying OK, I’m in command, we’re going to run the classic pincer over here, lets bring air support up from the southwest, assign this guy to command these guys, etc, belay all orders from the president. The judge is saying to the Navy, hey, you can’t prevent unvaccinated people from doing what the vaccinated people are doing, or put them on some kind of special status, which is a little different.

I think it’s a little heavy on the rhetoric to frame it as a court mandating specific types of deployment; the allegation is that the Navy is refusing to do normal operations with unvaccinated people, and the court is saying that the unvaccinated have a First Amendment right to be treated in the normal way. If that makes sense.

So, I mean, still bad. Not quite what he’s making it sound like, though, in my opinion.

I know the military has different rules than other jobs but considering mayors were allowed to fire people that didn’t get the jab, then I don’t understand why the Navy can’t do less and just give different assignments to unvaccinated sailors.

Bush the Younger-appointed judge. His decision was upheld by a three-judge panel, two of them Trump-appointed (one Reagan-appointed).

That quibble aside, I think @Jimmy_Chitwood has it exactly right.

Religious accommodation case law in the U.S. is a bit of a mess (the plaintiffs are claiming religious objections to the vaccine). It’s not terribly surprising that two different courts in two similar-but-different cases came to different conclusions. It seems likely that this case is going to be appealed, possibly to the Supreme Court, and one of the issues is going to be precisely this mismatch between courts as to government’s power to enact and enforce vaccine mandates on government employees.

I thought the courts were always extremely deferential to the military.

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, 345 U.S., at 92, 73 S.Ct., at 539.


Finally, Article III gives the judicial branch no power at all over the military. As a result, the courts, unlike the other two branches, have no Constitutional mandate to make military policy.

The tradition of judicial deference to the military grew out of this Constitutional structure and history. As commander-in-chief, the argument goes, the President should have the utmost latitude in making decisions that affect the readiness of America’s military. Similarly, Congress deserves free rein in exercising its Constitutional responsibilities to fund the military and make laws for its governance. In contrast, the courts have no such Constitutional mandate to make military policy; thus, they should yield to decisions by the President and Congress. SOURCE

Always? No. I mean, clearly that’s not the case. Generally, highly deferential? Sure. But it’s not like the U.S. military has carte blanche to just ignore the First Amendment.

Again, I agree pretty much 100% with @Jimmy_Chitwood. I think this was a poorly decided case, but it’s not quite as outrageous as the editorial writer is making it out to be.

The idea that U.S. courts have no authority to protect the First Amendment rights of military personnel would be pretty outrageous, though.

Also note that this is hardly the first time U.S. courts have intervened in U.S. military vaccine mandates:

Now, the facts and legal issues in dispute in those cases were different than the case in this thread. But it’s far from some totally unprecedented judicial overreach for a U.S. District Court to intervene in a mandatory vaccine program in the U.S. military.

(Not incidentally, opposition to the anthrax vaccine wasn’t particularly politicized, and to the extent it was, it wasn’t a neat and tidy left-right divide. And not incidentally, I don’t recall anyone contending at the time that U.S. courts were trying to take control over part of the military when they were issuing injunctions against anthrax vaccine mandates).

14th Amendment. The 1st says nothing about “equal treatment.”

Otherwise, well summarized.

It’s a religious freedom case.

Then never mind. I’ll just let myself out.

The problem with having such a broad interpretation of religious freedom is that you can use it as a “wah, wah, I don’t wanna” card for so many things.

I mean, seriously, the vaccine was not made using aborted fetal tissue. It does not alter your DNA. So, I don’t see a legitimate religious reason for not getting vaccinated.

In fact, Christ compels me to think of others before myself. A compelling reason to get vaccinated is so that you don’t spread it to an immunocompromised stranger. I think Jesus, the real Jesus, not the Trump and Guns Republican Jesus, would get vaccinated. (If not for the possibility that he probably doesn’t need to, being equally Divine.)

Didn’t we get Korematsu v. United States because the court felt they must defer to the government during wartime? I realize we are not at war but this is the military which is there to fight a war. That’s their purpose.

I think that is far more egregious civil rights violation than an unvaccinated person of the military being assigned a different duty.

The Ninth Circuit affirmed Korematsu’s conviction, based on deference to the executive branch during wartime, and he appealed. SOURCE

We did; but Korematsu was not a member of the US military, and so was not under the chain of command. Whether the President, as commander-in-chief of the military, and the suitably commissioned officers under him can maintain discipline in the military is a very different question than one of military necessity to assert authority over civilians.

The OPs case has implications for how the military chain of command works, essentially putting an unelected judicial officer into that chain regarding these specific plaintiffs. I agree the article’s tone on the case is rather hyperbolic, but the amount of direction claimed by the judiciary in this case is significant.

There’s a follow-up article, written by the same author at Slate, which shows things going a little farther in another case:

We did. Almost 80 years ago. And it’s been roundly and resoundingly criticized ever since. And it was explicitly repudiated by the Supreme Court in Trump v. Hawaii.

Seriously, you’re going to cite Korematsu, one of the most infamous court decisions in U.S. history?

And as @SunUp points out, it’s not even on point. It has nothing to do with religious accommodation or the military chain of command.

Well, yes, of course it is. Again, it’s one of the most infamous court decisions in U.S. history. Dredd Scott also involved far more egregious civil rights violations.

Do you think I’m somehow arguing in favor of the decision cited in the OP?

Rather than looking at an 80 year old repudiated case on interning civilians, maybe look at the cluster of c. 15 year old cases on vaccine mandates in the military in that Wikipedia article I cited.

Again, to double re-emphasize, I personally think the decision in the case cited in the OP was a bad decision. But U.S. courts have simply NOT “always” been “extremely differential to the military”, and have, in fact, issued injunctions blocking vaccine mandates for U.S. military personnel, multiple times.

It’s a bad decision, but it’s NOT an unprecedented judicial overreach.

Is religious accommodation more special and protected than other civil rights?

Do military personnel have more rights or less than Joe Citizen?

I’m not playing this game with you.

Then why is this important or relevant?

Less. In particular, and partly relevant to this issue, their First Amendment rights to free speech, when associated with their military duties, is significantly restricted.

AIUI, from an admittedly limited perusal of the Wikipedia link you posted, the anthrax vaccine mandates were opposed on the grounds of lack of established safety and/or efficacy, rather than on religious liberty grounds. It seems to the that this decision does represent a departure from judicial deferral to the chain of command.

As I stated when I first brought up those cases:

I was responding to a post that made the rather extreme claim that the courts were always extremely deferential to the military, and providing a relatively recent example, specifically involving vaccines, where the courts weren’t particularly deferential to the military.

I was also bringing them up as a matter of general interest for the thread as the most prominent example I happen to know of U.S. courts getting involved in military vaccine policies.

I was just pointing out that while the court in this case may have gone further, and based on shakier grounds, its decision was not completely unprecedented.