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Supreme Court Says Navy Can Curb Deployment for Unvaccinated (1)

March 25, 2022, 9:08 PM

A divided U.S. Supreme Court said the Navy can limit deployment and training for 35 Seals and other special operations forces who are refusing on religious grounds to get vaccinated against Covid-19.

Granting a Biden administration request over three dissents, the justices partly blocked a federal judge’s order that required the Navy to assign and deploy the sailors without regard to their unvaccinated status. The order will apply while litigation over the Navy’s vaccine mandate goes forward.

The court as a whole gave no explanation. In a concurring opinion that accompanied the one-paragraph order, Justice Brett Kavanaugh pointed to the “bedrock constitutional principle” that the president is commander in chief of the military.

“The Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel -- including control over decisions about military readiness,” Kavanaugh wrote.

The administration said the judge’s order would jeopardize safety and mission success, given that Seals often operate in tight quarters, including on submarines. The sailors contended the Navy was overplaying the risks at a time when the pandemic is easing.

Justice Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. In an opinion for himself and Gorsuch, Alito accused the majority of “rubberstamping” the government’s request.

‘Treated Shabbily’

“The court does a great injustice to the 35 respondents -- Navy Seals and others in the Naval Special Warfare community -- who have volunteered to undertake demanding and hazardous duties to defend our country,” Alito said. “These individuals appear to have been treated shabbily by the Navy, and the court brushes all that aside.”

Alito said he would have let the Navy limit deployment only for missions involving a “special need” to minimize the risk of Covid.

Defense Secretary Lloyd Austin made vaccinations mandatory for active-duty members of the military last year.

In his Jan. 3 order, U.S. District Judge Reed O’Connor of Texas also prohibited the Navy from enforcing the vaccine mandate against the suing sailors, but the administration didn’t ask the Supreme Court to immediately lift that part of the order. The New Orleans-based 5th U.S. Circuit Court of Appeals refused to block O’Connor’s order.

O’Connor, an appointee of former President George W. Bush, has become a favorite judge for conservative lawyers. In 2016 he barred the Obama administration from requiring public schools to let transgender students use bathrooms that correspond to their gender identity. In 2018 he declared the Affordable Care Act to be unconstitutional.

The case is Austin v. U.S. Navy Seals 1-26, 21A477.

(Updates with excerpts from opinions starting in third paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

John Harney

© 2022 Bloomberg L.P. All rights reserved. Used with permission.