# 5th Circuit Court of Appeals: Is it trying to take control over part of the Navy? **URL:** \ **Category:** Politics & Elections\ **Created:** [March 3, 2022, 3:47am UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384 "2022-03-03T03:47:43Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 5, 2022, 4:15am UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/21 "2022-03-05T04:15:18Z")
> [@gdave](#): > > I was responding to a post that made the rather extreme claim that the courts were always extremely deferential to the military… “Extreme claim?” Really? Examples and cites have been provided in this thread. There is nothing new or “extreme” about that claim. It may be wrong but it is reality. > American courts nearly always defer to the judgment of the executive branch and the military where matters of national security (broadly defined) are concerned. > > The doctrine has been questioned in a series of recent high-profile cases. Nevertheless, it still stands. [SOURCE](https://supreme.findlaw.com/legal-commentary/judicial-deference-to-the-military.html#:~:text=American%20courts%20nearly%20always%20defer,(broadly%20defined)%20are%20concerned.) There is a lot of exploration of the concept at the link above. Even if you disagree I think calling the notion that judicial deference towards the military exists as “extreme” is just flat wrong and disingenuous. ---
**Author:** ![gdave](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gdave/32/3683_2.png) [@gdave](https://boards.straightdope.com/u/gdave)\ **Post date:** [March 5, 2022, 4:34am UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/22 "2022-03-05T04:34:47Z")
> [@Whack-a-Mole](#): > > Even if you disagree I think calling the notion that judicial deference towards the military exists as “extreme” is just flat wrong and disingenuous. What is flat wrong and disingenuous is the claim that I ever said any such thing, and that the claim I was responding to was merely “that judicial deference towards the military exists.” Here’s what you actually said: > [@Whack-a-Mole](#): > > I thought the courts were always extremely deferential to the military. Here’s what I actually said in reply: > [@gdave](#): > > Always? No. I mean, clearly that’s not the case. _Generally_ , _highly_ deferential? Sure. And then I pointed out _several_ cases involving _vaccine mandates_ where U.S. courts intervened and _weren’t_ deferential to the military. Which you have simply ignored. Meanwhile, you continue citing _general_ statements about courts giving deference to the military. The specific instance you cited is an 80 year old case that is one of the most roundly and thoroughly criticized decisions in U.S. history, which was repudiated in a later Supreme Court decision. And, of course, when I pointed that out, you ignored that, as well. Congratulations, I suppose. I said I wasn’t going to play this game with you, but you managed to drag me back in with a direct claim of intellectual dishonesty. I am now done. I will no longer be responding to you in this thread, regardless of the provocation. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 5, 2022, 4:40am UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/23 "2022-03-05T04:40:34Z")
> [@gdave](#): > > _Generally_ , _highly_ deferential? Your nitpick is _“extremely”_ is substantially different (semantically) from “_Generally_ , _highly_ deferential?” Is that what you are hanging your argument on? What is the difference in your head? Bottom line the courts ARE deferential to the military as has been shown. Leaving the conversation does not change that. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [March 5, 2022, 4:38pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/24 "2022-03-05T16:38:25Z")
He left the conversation because you were being disingenuous. You were the one who originally made the extreme claim that the Courts were **always** differential to the military. You’ve now watered that down as if you said _sometimes_ differential. You’ve turned his statement into a strawman, pretending he said that the Courts were _never_ differential. And it was clear that was where you were going when you switched from making arguments to using leading questions. That was clearly you “playing a game,” as he said. You didn’t actually argue against the positions he took. You tried to redirect the conversation to whether or not the decision was morally right, which gdave had already said it wasn’t. You switched from trying to understand what was going on to trying to “win” against someone who was just starting facts. It’s true that him leaving doesn’t change the facts. But it’s also true that none of your rhetoric makes reality any different. gdave’s posts stand, while your extreme claim that Courts **always** defer to the military was shown to be false. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 5, 2022, 5:13pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/25 "2022-03-05T17:13:03Z")
This only makes sense if you and @gdave think that deference = accept whatever the military (in this case) says. It does not mean that (bolding below mine for emphasis): > According to Justice [Scalia](https://ballotpedia.org/Antonin_Scalia), [_Chevron_ deference](https://ballotpedia.org/Chevron_deference) is “the principle that the courts will accept an agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers.” Under [_Chevron_ deference](https://ballotpedia.org/Chevron_deference), a federal court must defer to an agency’s interpretation of a statute that the agency administers if the underlying statute is unclear and **the agency’s interpretation is deemed reasonable.** [SOURCE](https://ballotpedia.org/Deference_(administrative_state)) I know that is not specifically related to the military but it details what deference means in a legal context. There are different types of deference but none say the court must agree with an agency or the military. I provided a link earlier which discusses [judicial deference to the military](https://supreme.findlaw.com/legal-commentary/judicial-deference-to-the-military.html) and its history. It includes this bit (bolding below mine for emphasis): > [_Goldman v. Weinberger_](https://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=475&invol=503), the Supreme Court ruled that the Air Force could restrict the religious freedom of a Jewish officer who sought to wear a yarmulke - despite the First Amendment issues this regulation posed. Again the Court made clear that, under the circumstances, **“courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.”** Today, _Goldberg_ stands for the proposition that the military may burden the Constitutional rights of its members with a minimum of interference from the courts. Why is that disingenuous? Is it your and @gdave’s contention that courts do not give deference to the military? If courts do not _always_ show deference in cases related to the military then is there no deference or is it only a “if we feel like it” thing for the court? How would that work? Reminder: showing deference _does not mean_ the court must accept anything the military says or does. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 5, 2022, 5:18pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/26 "2022-03-05T17:18:09Z")
Are the words **always** and **generally** synonyms in your dialect? If not, it is baffling that you keep ignoring that difference. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 5, 2022, 5:20pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/27 "2022-03-05T17:20:03Z")
> [@Whack-a-Mole](#): > > If courts do not _always_ show deference in cases related to the military then is there no deference or is it only a “if we feel like it” thing for the court? How would that work? Do you understand that showing deference **does not mean** the court _must_ agree with whatever the military is on about? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 5, 2022, 5:21pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/28 "2022-03-05T17:21:23Z")
Oh, super great point, you win. Now, can we get back to the interesting part of the discussion? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [March 5, 2022, 5:36pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/29 "2022-03-05T17:36:17Z")
> [@Whack-a-Mole](#): > > _Chevron_ deference is an administrative law concept that relates to what happens when Congress delegates its legislative function to an administrative agency. As you noted, that isn’t what we’re talking about here. But to the extent it IS relevant to defining our terms, what “Chevron deference” calls for is the same as what the word means in common speech – if it applies, the government wins. The court “must agree,” in your terms. Which is the opposite of what you’re arguing for reasons that I am not sure about. Don’t mean this as a dig, but I suggest you got out over your skis and there isn’t a whole lot to argue about here. ---
**Author:** ![gdave](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gdave/32/3683_2.png) [@gdave](https://boards.straightdope.com/u/gdave)\ **Post date:** [March 5, 2022, 7:17pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/30 "2022-03-05T19:17:31Z")
> [@SunUp](#): > > There’s a follow-up article, written by the same author at Slate, which shows things going a little farther in another case: > > [A judge ordered the Navy to deploy a warship with an anti-vaxxer in command.](https://slate.com/news-and-politics/2022/03/covid-vaccine-judge-navy-warship-religious-freedom.html) So, back the actual topic of the thread… This “article” is actually pretty frustrating. The same sort of misleading hyperbole as the first “article”. The judge is not ordering the Navy to deploy a warship with an anti-vaxxer in command. He is preventing the Navy from removing an officer from command of a warship. That’s not really the same thing. And “The federal judiciary is quite literally preventing the nation from defending itself at sea.” There aren’t enough roll-eyes. The case involves a single guided missile destroyer, which the Navy is perfectly free to deploy or not at its own discretion. And following that up with “But Doe poses the bigger threat. He is currently the commanding officer of a warship that may soon set sail. If he falls seriously ill at sea—which is more likely because he refuses the vaccine—he may thwart the entire mission.” Oh, come on now. If a single ship’s commander falling seriously ill thwarts an entire mission, the Navy’s got _much_ bigger problems than an over-active judge on an anti-vax crusade. That being said, it’s pretty frustrating, because underneath the hyperbole, the judge’s actions really do seem outrageous. Appointment and removal of individuals from command really is an area where I think U.S. courts could be legitimately said to have always been extremely deferential to the military. I’m hardly an expert, but unlike the vaccine mandate cases supra, I personally can’t think of any instances where a U.S. court directly intervened in this kind of command decision. And even worse, the officer in question isn’t just refusing to vaccinate. According to his superiors, he’s been insubordinate, disobeyed regulations and direct orders, and lied to his superiors. If I had pulled _half_ the crap he’s accused of back when I was a lowly Platoon Sergeant, merely being removed from my position would have been the _least_ of my concerns. I guess rank does hath its privileges if he’s _only_ facing being removed from command (and yes, I realize for an officer, that’s a career-killer, but it seems like he could be facing a court martial). And the judge in this case apparently thinks that his superiors are _lying_ about all of that, under oath, as retaliation for his vaccine refusal? I mean…I guess that’s _possible_, but…again, this is an area where I think courts usually do show quite a bit of deference to the military. Unless he has actual evidence to the contrary, questioning the integrity of _multiple_ officers and impugning their sworn testimony really seems beyond the pale. ---
**Author:** ![ekedolphin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ekedolphin/32/10003_2.png) [@ekedolphin](https://boards.straightdope.com/u/ekedolphin)\ **Post date:** [March 26, 2022, 7:49pm UTC](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384/31 "2022-03-26T19:49:17Z")
Went to the Supreme Court. Here’s an update: > **[The Supreme Court rules that Joe Biden is commander-in-chief. Three justices...](https://www.msn.com/en-us/money/news/the-supreme-court-rules-that-joe-biden-is-commander-in-chief-three-justices-dissent/ar-AAVvlyf?ocid=msedgntp&cvid=69f81d27b4ae41b39ee0fb621ab144c3)** > > The judiciary cannot be part of the chain of command. [Previous page](https://boards.straightdope.com/t/5th-circuit-court-of-appeals-is-it-trying-to-take-control-over-part-of-the-navy/960384.md?page=1)