Navy SEALS and other Navy personnel seek answers from Biden administration for Covid-19 vaccine mandate

NEW ORLEANS — Monday, judges on a federal appeals court asked a lawyer for the Biden administration a lot of questions about what could happen if military members refused to get vaccinated against COVID-19, even though Biden’s order for military members to get vaccinated has been taken away.

Lawyers for a group of Navy SEALS and other Navy personnel who refuse to get vaccinated for religious reasons told a 5th U.S. Circuit Court of Appeals panel that federal court injunctions against the mandate are still needed, in part because deployments and assignments can still be based on vaccination status.

“Is there a written promise that deployment decisions won’t be based on vaccinations?” One of the three judges hearing the case, Judge James Ho, asked the lawyer for the Department of Justice, Casen Ross.

Ross said that these questions were just guesses and had nothing to do with the case in front of the court. Ho and Judge Kyle Duncan pointed out that the military mandate was only ended reluctantly by the administration after Congress acted in December, but Ross told the panel that there are no plans to bring it back.

Ross said, “Given the current public health guidelines and the state of the virus, there are no plans to require all service members to get vaccinated.”

After Congress voted in December to get rid of the requirement, the Pentagon did away with it for real in January. But people who don’t like vaccines point out that commanders can still decide how and whether to deploy troops who haven’t been vaccinated. This is because of a memo signed by Defense Secretary Lloyd Austin last month.

Leaders in the military have said for a long time that troops need to get as many as 17 vaccines to keep their units healthy and ready, especially those who are going overseas.

In briefs to the 5th Circuit, lawyers for the Navy members who didn’t get vaccinated argued that Austin’s memo and other Defense Department actions show that the Navy still plans to treat unvaccinated personnel “like second-class citizens because of their religious beliefs.”

In their briefs, lawyers for the government say that the policy follows “well-established principles of judicial noninterference with core military decision making.”

The Navy SEALS filed their lawsuit in November 2021. In it, they said that getting religious exemptions from the COVID-19 vaccine was a difficult 50-step process. Their lawyers have called it a “sham” and “categorically denied” all of their applications.

The Defense Department denied that the process was hard and said that the Navy has a strong reason to require vaccinations for people who work for long periods of time in “closed spaces that are perfect places for respiratory illnesses to grow.”

Heather Hacker, an attorney for Navy personnel, said on Monday that the situation could be worse for them now that the old mandate policy has been changed. She said this is because the new policy doesn’t take into account a sailor’s religious objections to the vaccine when deciding where to send them or where to deploy them.

“We’re going from a process with 50 steps to one with no steps?” Duncan said so.

“That’s right, your honor,” said Hacker.

A federal judge in Texas stopped the Navy from taking any action against the Navy plaintiffs for not being vaccinated in January of last year. The order from the judge was not stopped when the Biden administration asked the 5th Circuit to do so.

But the administration got at least a temporary, partial win when the Supreme Court approved a “partial stay” in March of last year. While the case is going on, the order let the Navy take the sailors’ vaccination status into account when making decisions about deployment, assignment, and other operational matters.

It wasn’t clear when the judges would decide. On Monday, arguments were heard by Duncan, Ho, and James Graves. Duncan, Ho, and Graves were all appointed to the 5th Circuit by President Donald Trump.