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Trump Judges Are Now a Threat to America’s National Security

Slate logo Slate 3/1/2022 Mark Joseph Stern
President Joe Biden salutes Marines outside the Marine Barracks on January 25, 2022. Saul Loeb/Getty Images © Provided by Slate President Joe Biden salutes Marines outside the Marine Barracks on January 25, 2022. Saul Loeb/Getty Images

On Monday, the 5th U.S. Circuit Court of Appeals issued a stunning decision transferring control over the Navy’s special operations forces from the commander-in-chief to a single federal judge in Texas. The 5th Circuit’s decision marks an astonishing infringement of President Joe Biden’s constitutional authority over the nation’s armed forces, directing him to follow the instructions of an unelected judge—rather than his own admirals—in deploying SEALs. High-ranking military personnel have testified under oath that this power grab constitutes a direct threat to the Navy’s operational abilities. As Russia invades Ukraine and declares a nuclear alert, Donald Trump’s judges are actively threatening America’s national security.

Like so many lawless cases in the 5th Circuit, this dispute began in the courtroom of U.S. District Judge Reed O’Connor. A notorious George W. Bush nominee, O’Connor is best known for attempting to abolish the Affordable Care Act in 2018, then getting reversed by a 7–2 vote at the Supreme Court last year. So when 35 Navy Special Warfare service members refused to comply with Biden’s COVID-19 vaccine mandate for the armed forces, they brought their case to O’Connor. These service members—mostly SEALs, all represented by the far-right First Liberty Institute—claimed that their religious beliefs barred them from getting the shots. (Some said they heard “divine instruction not to receive the vaccine”; others asserted that the mRNA vaccines altered “the divine creation of their body by unnaturally inducing production of spike proteins.)

O’Connor predictably sided against Biden, granting a preliminary injunction of staggering scope on the grounds that the mandate violates the Religious Freedom Restoration Act. He awarded himself sweeping authority over the assignment of the plaintiffs, forcing the Navy to deploy them with operational units. When several plaintiffs were denied transfer to a duty station, they asked O’Connor to sanction the government for allegedly violating his order; he promptly ordered the Justice Department to explain why it should not be punished for failing to deploy these service members. (O’Connor has not yet decided whether to impose sanctions.)

As of today, this lone judge continues to oversee the plaintiffs’ assignments, forcing the Navy to train, equip, and deploy unvaccinated troops—with granular specificity as to their exact stations and duties.

Never before in the history of the United States has one district court judge exercised so much control over the armed forces. The Constitution assigns this authority to Congress and the president. There are certainly legal limits on executive discretion, including due process and constitutional safeguards against invidious discrimination. Right-wing lawyers have typically been loath to acknowledge any restrictions on the president’s war powers. Indeed, the conservative legal movement has endorsed a near-limitless vision of the commander-in-chief: Republican presidents, lawyers, and judges have argued that the Constitution allows the president to deploy troops without congressional approval, indefinitely detain enemy combatants, and exclude entire classes of immigrants from the country. But now it seems they draw the line at a simple vaccine requirement—even though all service members were already required to have at least nine vaccines upon enlistment.

Setting aside this hypocrisy, O’Connor’s order violated a fundamental principle of judicial restraint: Federal courts have long held that specific military assignments are never subject to judicial review. O’Connor appears to be the first judge ever to rule that, in fact, the courts can compel the armed forces to deploy a specific service member to a specific location to perform a specific duty. If his court were in a sane circuit, this unprecedented intrusion on the president’s power would be quashed almost instantly.

But O’Connor does not sit in a sane circuit; he sits in the 5th Circuit. This rogue court is now dominated by Trump judges, and it is breaking every rule to hobble Biden’s presidency. The government’s request for a stay landed in the laps of two infamous Trump judges, Stuart Kyle Duncan and Kurt Engelhardt, along with Edith Jones, an infamously partisan Ronald Reagan nominee.

In an unsigned opinion that bristled with hostility against the COVID-19 vaccine, this panel agreed that the mandate violated religious liberty. Noting that most service members are vaccinated, the panel declared that the Navy lacks the “paramount interests” necessary to overcome anti-vaxxers’ religious objections. It questioned the “efficacy” of the vaccine, noting that “the USS Milwaukee was ‘sidelined’ in December 2021 by a COVID-19 outbreak despite having a fully vaccinated crew.” (Unmentioned was the fact that the crew’s vaccination status prevented even more transmission and serious illness.) The panel then found that the Navy will not be “irreparably harmed” by O’Connor’s order. And it concluded that the “public interest” lies in keeping the plaintiffs unvaccinated.

These last two assertions—that both the Navy and the American people are better off with O’Connor’s continued supervision of unvaccinated special forces—is not just wrong. It is dangerously delusional. In support of the mandate, the Justice Department filed five declarations from high-ranking Navy officers: Admiral Daryl L. Caudle, Vice Admiral William Merz, Captain Joon Yun, Rear Admiral Gayle D. Shaffer, and Captain Christopher Brown.

These leaders explained that O’Connor’s order poses a direct threat to the military’s readiness and lethality. Service members in the Navy, they wrote, live in extremely close quarters with one another for lengthy periods. An outbreak on a ship or submarine can thwart an entire mission. O’Connor’s reasoning— “that the incremental impact” of adding a few unvaccinated members—is thus “incorrect and dangerous logic.” With each additional unvaccinated member, “the risk to personnel and risk to mission increases exponentially and unacceptably.” The mandate is thus “the most effective and readily available tool the Armed Forces has” to “protect vital United States’ national interests. Simply put, the less people who are vaccinated, the less ready the Navy is to deter aggression and, if required, fight and win in combat.”

“The bottom line,” these admirals and captains testified, “is the COVID-19 vaccine is keeping ships at sea, submarines on patrol and aircraft flying to protect and defend the Nation’s and our partners’ and allies’ interests.” Forcing the Navy to deploy unvaccinated members “puts the Nation’s ability to respond to crises around the world at unnecessary and self-inflicted risk.”

The military leaders also testified that O’Connor’s order had grievously undermined the chain of command. “In the deadly business of protecting our national security,” they wrote, “we cannot have a Sailor who disobeys a lawful order to receive a vaccine because they harbor a personal objection any more than we can have a Sailor who disobeys the technical manual for operating a nuclear reactor because he or she believes they know better. Our success, our national security, and the safety of our people depends on instinctive compliance with orders.” O’Connor’s injunction invites service members “to challenge a commander’s professional military judgment, whether it concerns training, assignment of duties, or other everyday orders essential to the Navy’s mission that they might find to be objectionable.”

The 5th Circuit shrugged off this testimony, substituting expert judgment with its own whims. Its decision opens the door to a significant escalation: The plaintiffs have asked O’Connor to extend his injunction to an entire class of Navy anti-vaxxers—exempting up to 4,000 service members from the mandate and seizing control over their deployment orders. If the Supreme Court does not put a stop to this subversion, O’Connor appears poised to bite off an exponentially bigger chunk of Biden’s authority.

While the world inches closer toward the possibility of nuclear war and Russia presses further into Ukraine, O’Connor, Jones, Duncan, and Engelhardt are sabotaging the Navy’s ability to fight. If this judicial assault on military readiness during a violent global conflict does not run afoul of the commander-in-chief’s constitutional powers, it is hard to imagine what would.

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