Government Cases and the Federal Courts

A lone judge has halted the military's vaccine mandate.

WaPo (“Judge grants relief to Navy SEALs who refused coronavirus vaccine, sued Biden administration“):

A federal judge granted a preliminary injunction on Monday blocking the Defense Department from taking action against a group of 35 Navy sailors who had refused to get a coronavirus vaccine, raising questions on how it might shape the Pentagon’s requirement that all U.S. troops get vaccinated.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19-s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

Pentagon spokesman John Kirby said Monday night that defense officials were aware of the injunction and reviewing it.

The troops — a group that included Navy SEALs and other members of Naval Special Warfare Command — filed suit against President Biden, Defense Secretary Lloyd Austin, Navy Secretary Carlos Del Toro and the Defense Department to challenge the Navy’s vaccination requirement in November. The troops cited Christian beliefs that they should not take a vaccine developed from aborted fetal cell lines and saw a modification of their bodies as an “affront to their Creator.” Many Christians have sought vaccination, with Pope Francis urging Catholics to do so on humanitarian grounds.

The suit was filed by First Liberty Institute, a nonprofit that specializes in defending religious liberty. Michael Berry, a lawyer for the institute, said in a phone interview that the ruling “sends a clear message to the Biden administration, to the Pentagon and to the Navy that our service members do not give up their religious freedom when they serve their country.”

Should the Biden administration appeal the decision, Berry said, “we will defend this as far as it needs to go.”

NYT (“Federal judge blocks the Defense Dept. from punishing Navy forces who refuse the vaccine.”) adds:

“Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect,” Judge O’Connor wrote in his 26-page order. He added: “The Covid-19 pandemic provides the government no license to abrogate those freedoms. There is no Covid-19 exception to the First Amendment. There is no military exclusion from our Constitution.”


The decision follows another injunction by a judge in November against President Biden’s national vaccine mandate for health care workers.

Judge O’Connor, who was appointed by President George W. Bush, has reliably tossed several Democratic policies that have been challenged on the federal bench. In response to the injunction on Monday, Senator Ted Cruz, Republican of Texas, wrote on Twitter, “This is a major win!”

This case highlights a longstanding pet peeve of mine: the sheer idiocy of some 700-odd District Court judges having the power to overturn an Act of Congress or Executive Order of the President or one of his plenipotentiaries on a whim.

On the merits here, I think O’Connor is clearly wrong. It’s simply absurd to claim that the First Amendment provides a right to members of the United States Armed Forces to disobey orders they don’t feel like following. But, even if there were genuine conflict on that front, it should clearly be a matter for the Supreme Court, not a random lower court judge.

That was clearly the intent of the Framers under Article III, Section 2:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Because there are so many cases “in which a state shall be a party,” Congress has long since given the lower courts concurrent jurisdiction there and the Supreme Court has acquiesced to this (even though it’s prima facie unconstitutional, it would be impractical for the high court to hear all these cases).

But it’s simply bizarre to allow individual citizens to sue to stop the enforcement of Acts of Congress or orders of the President in any venue that some advocacy organization happens to pick. It gives someone with no especial expertise the ability to hold American democracy hostage for months on end until a case winds its way through the appeals process.

FILED UNDER: Democracy, Law and the Courts, , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. gVOR08 says:

    You’re right that this practice is facially unconstitutional. Shouldn’t “originalist” justices object to this outrage and demand Biden and Schumer immediately expand the Court to handle the workload?

    But isn’t the real question why anybody, not just the military or the feds, should be subject to the whims of a Federalist Society RW loony tune judge?

  2. Scott says:

    This is where the whole “sincerely held religious beliefs” scam is going. If one’s beliefs are paramount over all else and no one is allowed to judge those beliefs, then there is anarchy, pure and simple. And to have that in the military is just nuts.

  3. Beth says:


    Not one’s beliefs are rightwing Christian beliefs. They are attempting to carve out an exception for them that they can use to rule over all of us. If this case is right, then why doesn’t some rando service member have the religious right to have an all White Christian (probably male) unit including chain of command? Most of the White Supremacist rhetoric is couched in Christian terms anyway. Realistically, where does one person’s religious liberty end under this? Well, I mean, I know the answer if your the right kind of Christian.

  4. mattbernius says:

    This is a perfect example of how all Article III judges are in the end political positions. You don’t get selected for a Federal Judgeship without well-established political connections.

    The problem is, I’m not sure the best approach to fixing this situation. It’s very easy to imagine the equivalent of a “ticking timebomb” scenario where the ability to halt implementation of a law is a good thing (conservatives will see this as just such a case, liberals can look to a variety of Trump lawsuits where it was equally important).

    And jumping the District level and going straight to circuit review just doesn’t make sense either (in part due to the number of nuisance cases that are filled–see, e.g., any of the Trump election lawsuits filled at the federal level). That would grind the courts to a halt.

    This is a case where, while frustrating, I for one think this may be the best possible scenario at the moment.

  5. HarvardLaw92 says:

    They venue shopped specifically to get this before O’Connor, who can best be described as dependably flawed in a partisan way. I wouldn’t necessarily read too much into it.

  6. Gustopher says:

    Does the military take the Sabbath off in times of peace? And do the Jewish soldiers take a different day than the Christian soldiers?

    Also, just in general, I think I need to find a religion so I can exploit the religious exemptions. Does anyone have a chart of the various religions and the perks that come with each?

  7. matt bernius says:


    They venue shopped specifically to get this before O’Connor, who can best be described as dependably flawed in a partisan way.

    Agreed. And venue shopping for dependably flawed judges is also a time-honored strategy that is used across the spectrum.

    Also to be clear, just because Judgeships are political doesn’t mean that a judge cannot do their jobs more or less fairly. It’s just we shouldn’t buy into the idea that they are “just here to call ‘ball’s and strikes.'”

  8. Daryl and his brother Darryl says:

    They didn’t object to every other vaccine they had to take.
    So there is no other way to read this than a political statement intended to prolong and exacerbate the pandemic, which will inturn kill more Americans. Why do they hate America so?
    Navy Seals…a bunch of trained killers…but you know, religious.

  9. Any pressing requirement for Naval Special Warfare to deploy to Attu to count penguins for the next six months as I think the Navy found some volunteers for that pressing national security task.

  10. Thomm says:

    Classify them as non-deployable then. Just a different way to crash their career.
    Btw, I’m sure this judge would be 100% behind Sikhs not having to trim or cut their hair in the military. That is a true religious prohibition, not some b.s. concocted on the fly to show their allegiance to the GOP, Trump, and the fascist evolution of the conservative movement.

  11. HarvardLaw92 says:

    @matt bernius:

    Mmhmm. He’s the same clown that produced a ruling so off the rails bad, so flawed, in California v. Texas that it found Thomas, Barrett, Kavanaugh, and Roberts joining an opinion written by Breyer overturning it. It was that bad. He doesn’t really even try to hide the bias.

  12. gVOR08 says:

    @matt bernius: Yes, venue shopping is traditional and judges will bring their biases to the bench. But do we have to put up with Judge O’Connor AND Amy Rabbit Barrett lying about judges being non-partisan?

  13. Just nutha ignint cracker says:

    @gVOR08: The best we can do is relinquish the now quaint notion that we have a neutral Federal jurisdiction system and operate accordingly–get along as you are able knowing that if they decide to put you in their crosshairs, you’re done. (Which is the same conclusion I came to in how to respond to the “Patriot Act.”)

  14. JohnSF says:

    Reformed Assemblies of Tezcatlipoca the Great Smoking Mirror, He by Whom We Live, the Silent Wind, and Thunderous War.
    Lord of obsidian, discord, rulership, divination, and temptation.
    Oh. and jaguars that eat peoples faces.
    Perks: entitled to all the chocolate you want, and to sacrifice the still-beating hearts of any neighbours who object to your supremacy.

  15. JohnSF says:


    Does anyone have a chart of the various religions and the perks that come with each?

    Not the whole set, but unlike that last cult of the Tezcatlipocalypse, which I was (sort of) making up 🙂 Jain Digambaras are a thing.
    Grants an exemption to uniform regulations.
    In a way.

    Digambara means “skyclad” and entails a religious obligation to nudity.
    Also to non-violence, vegetarianism, and chastity.

  16. Kevin says:

    I’m also confused because, from what I understand, it’s well settled law that you do give up some rights, including constitutional rights, when you join the military. Or at least exercising certain rights and a military career are not compatible.

  17. flat earth luddite says:


    Digambara means “skyclad” and entails a religious obligation to nudity.
    Also to non-violence, vegetarianism, and chastity.

    Damn, I misread it the first time, thought the Jain sects were against nudity, non-violence, vegetarianism, and chastity. Not for it.


  18. Zachriel says:

    “To permit this {people using their religious beliefs as a reason not to obey generally applicable laws} would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” — Antonin Scalia, Employment Division v. Smith

    The “my personal religious beliefs require me to ignore stop signs” religious exemption to the traffic laws.