Jurisprudence

Judge Blocks Military Vaccine Mandate Again, Dares Supreme Court to Stop Him

Roberts and Breyer stand in one row with Barrett and Kavanaugh standing behind them, all wearing their robes
Justices Amy Coney Barrett, John Roberts, Brett Kavanaugh, and Stephen Breyer attend the State of the Union address on March 1. Saul Loeb/Getty Images

How close can a district court judge come to disobeying the Supreme Court without technically defying it? Judge Reed O’Connor wants to find out. Last week, in a 6–3 order, the Supreme Court halted his unprecedented injunction attempting to order the deployment of 35 Navy SEALs and other special warfare troops who refused to get the COVID vaccine on religious grounds. In a concurrence, Justice Brett Kavanaugh explained that courts may not exercise their power “in a manner that military commanders believe would impair the military of the United States as it defends the American people.”

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But O’Connor, a George W. Bush appointee, didn’t seem to get the message. Just three days later, he issued a far more sweeping order granting 4,095 service members a religious exemption from the COVID vaccine. The Navy already denied these exemptions, but O’Connor overrode its judgment, holding that there is no “compelling interest” to justify the mandate. His decision is all but certain to be upheld at the lawless and radical 5th U.S. Circuit Court of Appeals. The real question is whether the Supreme Court will reward yet another brazen attempted heist of President Joe Biden’s constitutional authority.

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From the start of this case, O’Connor has expressed undisguised disdain for the Navy’s vaccine mandate and the officers in charge of enforcing it. In his first injunction, he slammed the mandate for its alleged “irrationality” and rejected high-ranking officers’ testimony that it will improve military readiness by diminishing the impact of COVID on the force. In his original order, O’Connor did not merely bar all adverse action against unvaccinated service members; he also sought to make the Navy deploy unvaccinated troops on specific missions and bar the reassignment of unvaccinated troops to positions in which they were less likely to catch or transmit COVID. In case there was any confusion about the scope of that previous injunction, O’Connor threatened to hold the government in contempt after several plaintiffs complained that they had not been promoted quickly enough.

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The Justice Department made a tactical decision to appeal only this most extreme aspect of O’Connor’s ruling on deployment and assignment. Its gamble paid off at the Supreme Court, which sided with the DOJ last Friday (over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch). Although the court did not explain its order, Kavanaugh wrote separately to lay out his position. “Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces,” he wrote.

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Kavanaugh specifically took issue with O’Connor’s application of the Religious Freedom Restoration Act, or RFRA. Under this law, a substantial burden on religious exercise must be “the least restrictive means” of furthering a “compelling governmental interest.” The Navy, Kavanaugh concluded, has “an extraordinarily compelling interest” in “control over decisions about military readiness,” and “no less restrictive means would satisfy that interest in this context.” In other words, O’Connor underestimated the government’s interests in vaccination and overestimated its obligation to tailor the mandate.

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On Monday, O’Connor responded: No, I didn’t. Three days after SCOTUS’s order, he transformed the original lawsuit into a class action, increasing the number of plaintiffs 117-fold. This time, he held that the Navy does not have a compelling interest in requiring vaccination against COVID, contrary to what the Supreme Court’s decision last week implied. O’Connor noted that most of the force is already vaccinated, and that troops with medical exemptions are allowed to remain in active duty. It was “illogical,” he wrote, to deny religious exemptions while granting medical ones, so the mandate violates RFRA. He issued a new, classwide injunction shielding 4,095 service members from the vaccine. Then, begrudgingly, he noted that his order could not yet apply to deployment and assignment under the Supreme Court’s recent decision.

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What, then, does this new injunction do? For now, it bars the Navy from “separating” service members who refuse the shot for religious reasons. Separation is an administrative process that culminates in discharge. There are several ways to challenge a separation and discharge, and the Supreme Court has long held that service members must exhaust these “administrative remedies” before seeking federal court intervention. Here, however, O’Connor granted the plaintiffs an exemption from this rule, reasoning that his own understanding of the situation outweighed the military’s “expertise.” (“Generals don’t make good judges—especially when it comes to nuanced constitutional issues,” he wrote.)

To call this decision anomalous would be a vast understatement. “To have a prior restraint on administrative action is quite remarkable,” military justice expert Eugene R. Fidell told me. “People are trying to get federal judges to grant injunctions to prevent their discharge all the time, and typically they don’t get anywhere. They’re told, ‘Come back when the dust has settled and we’ll put you back together again if you’re right.’ ”

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What happens now? The Justice Department, having scored a win on its first trip to SCOTUS, will return to the high court—following a pit stop in the 5th Circuit, where it will almost certainly lose. DOJ attorneys will urge the justices to end O’Connor’s attempted hostile takeover of the commander in chief’s authority.

The big question is whether Kavanaugh, along with Chief Justice John Roberts and Justice Amy Coney Barrett, will stick to his guns. If Kavanaugh really meant what he said last time around, it should be an easy case. From the start, the Navy has asserted that unvaccinated service members pose a severe threat to military readiness, heightening their risks of severe illness, death, and transmission of the virus. Every additional unvaccinated troop increases the odds of an outbreak that will undermine or terminate an operation. O’Connor has now saddled the Navy with more than 4,000 unvaccinated service members who cannot be deployed on missions or assigned to important roles. They are a drag on the armed forces, hindering the national defense due to their refusal to comply with a lawful order.

Just one week ago, Kavanaugh declared that “control over decisions about military readiness” lies with the military, not the courts. O’Connor defied him less than 72 hours later. If a majority of the Supreme Court really believes that judges have no right to act as admirals, it will need to send a much stronger signal that O’Connor’s power grab flouts all known law.

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