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Pentagon heads to Supreme Court to stop deployment of unvaccinated Navy SEALs

The government claims a lower court seriously overstepped its bounds by intruding into core military affairs.

WASHINGTON (CN) — Secretary of Defense Lloyd Austin asked the Supreme Court on Monday to block a lower court ruling that would force the military to deploy unvaccinated Navy SEALs fighting the Defense Department’s Covid-19 vaccine mandate.

In a 42-page application filed with the high court, the government claims the lower court order is an “extraordinary and unprecedented intrusion into core military affairs.” The Navy has already had to deploy one servicemember to Hawaii on a submarine against its military judgment. 

Thirty-five servicemembers within the Naval Special Warfare community — which conduct missions including special reconnaissance, counterterrorism, counterinsurgency, and hostage rescue — have filed a suit challenging the military’s Covid-19 vaccine requirement. These servicemembers are required to be vaccinated under “Trident Order #12” from the Naval Special Warfare Command. 

The Navy offers medical and administrative vaccine requirements. As of December, the Navy granted 10 permanent medical exemptions — none of which were in the Special Warfare community —  and 259 temporary medical exemptions from the Covid-19 vaccine requirement. 

The 35 servicemembers have asked the Navy for religious exemptions to the vaccine. So far, the Navy has received over 4,000 requests for religious accommodations around the Covid-19 vaccine and only one has been granted. However, the SEALs in this case claim their refusal to get the vaccine should not affect their deployments. 

A federal judge granted the servicemembers an injunction in January and the Fifth Circuit refused to block the injunction earlier this month after the government appealed. The Defense Department is now turning to the high court to get a partial stay on the injunction to prevent unvaccinated troops from being deployed. 

“This application seeks relief from a preliminary injunction that usurps the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions,” Solicitor General Elizabeth Prelogar wrote in the government’s filing.

“The lower courts seriously erred by compelling such a dereliction of duty and failing to afford any deference to the ‘professional judgment’ of Admiral Lescher and other military officers charged with our Nation’s defense,” Prelogar wrote. 

The application stresses these servicemembers’ unique roles that require them to conduct high-risk missions in hostile environments. These missions often involve close quarters for long periods of time and are often the most physically and mentally demanding assignments in the U.S. military. According to the second-highest uniformed officer in the Navy, just one member of a small SEAL team contracting Covid-19 could compromise the entire mission. 

“The Navy has an extraordinarily compelling interest in ensuring that the servicemembers who perform those missions are as physically and medically prepared as possible,” Prelogar wrote. “That includes vaccinating them against Covid-19, which is the least restrictive means of achieving that interest.” 

It is because of the high-risk missions on which they operate that the government argues the servicemembers’ claims lack merit. But, even if their claims did have merit, the government said that does not give them the right to dictate the Navy’s deployment decisions. 

“An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions is inconsistent with those traditional principles and has no precedent in our Nation’s history,” Prelogar wrote. 

The court has asked for a response brief from the SEALs by next Monday. 

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