Lawyers for the United States and the Navy Seals fight for the revocation of the mandate of the Covid-19 vaccine
The appeals court made no immediate decision on Monday.
Justice Department lawyer Casen Ross urged the appeals court to reverse as notional preliminary injunctions a Texas federal judge issued early last year against the policy of the Biden administration requiring the military to receive a coronavirus vaccine unless they obtain a religious exemption.
Ross said the National Defense Authorization Act passed in December effectively reversed that policy and rendered injunctions against the policy moot. Lawmakers moved to overturn the military vaccine mandate in the face of opposition from President Joe Biden, who signed onto the broader defense measure anyway. Defense Secretary Lloyd Austin formally rescinded the policy-related orders last month.
“This court should therefore follow its usual practice and quash these injunctions as these appeals have become moot,” Ross said.
The Supreme Court intervened last March to block part of the injunctions, essentially giving the military absolute power to make deployment decisions. The Biden administration has not asked the High Court to change parts of the injunctions barring the discipline or dismissal of service members who refuse to take the vaccine or say it violates their religious beliefs.
Three conservative judges expressed their disagreement with this decision. However, Judge Brett Kavanaugh backed it up, saying it was in keeping with tradition to give the president broad authority over the military.
However, during oral arguments on Monday, Judge James Ho said he did not think the policy was at all about military needs.
“It was a vaccination policy for the whole country or at least a large percentage. … So it was not a military decision. It was a social policy decision,” said Ho, an appointee of President Donald Trump. “There’s no discussion of military readiness or anything. This may be a debatable or valid discussion of vaccine mandate politics we can have, but it doesn’t sound like military necessity or military readiness. This sounds in social policy.
Ho also suggested that Biden’s stated desire to maintain the policy meant it was possible it could return in the future.
“This change is a policy that you all vehemently oppose. So it seems a little weird to say that there is no more controversy,” Judge said.
While Ho seemed inclined to leave the injunctions in place, another judge on the panel, James Graves, appeared to be considering removing them while letting the litigation continue in district court. Graves, a President Barack Obama appointee, has repeatedly questioned whether the injunctions actually block any policy currently in place.
Judge Kyle Duncan, a Trump appointee, expressed concern that the Navy appeared to have abandoned the religious exemption process it had in place when the warrant was in effect.
Ho and Duncan asked Ross if the Justice Department argued the case was completely moot or if the service members could continue to fight their legal battle in lower court. Ross took the unusual tactic of refusing to say so, even though a filing addressing the issue is due in district court later Monday.
“The government has not yet filed a case in this case, and, therefore, I think it would be premature for me to make representation in this court,” Ross said. “We have a number of hours before it’s actually due. So I don’t want to find myself in front of these litigants.