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Will the ghost of Korematsu haunt the Supreme Court?

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April 1, 2022

By Mike Berry, Vice President of External Affairs, Director of Military Affairs and Senior Counsel

Late last week, the United States Supreme Court slightly narrowed an injunction protecting 35 Navy SEALs from the Department of Defense’s unlawful Covid-19 vaccine mandate. The SEALs, like thousands of their fellow sailors, each sought and were denied religious accommodations from the mandate. Without any evidence or consideration of the numerous exceptions to the government’s mandate, let alone the ever-changing nature of COVID, its variants, or natural immunity, the Navy flatly rejects all religious accommodations for active members.

In January, a federal district court judge issued an injunction in favor of the SEALs. In early March, the U.S. Court of Appeals for the Fifth Circuit rejected the Navy’s request that it stay the injunction. But on March 25, the Supreme Court, in a 6-3 decision, granted the Navy’s emergency application for a partial stay of a lower court order prohibiting the Navy from considering the vaccination status of 35 Naval Special Warfare members when making personnel assignment decisions. While the injunction continues to protect the SEALs from punishment or court-martial, at least one of the justices on the court raised a troubling doctrine to justify the partial stay.

In a concurrence, Justice Brett Kavanaugh invoked what he described as the “bedrock constitutional principle” that courts ought not interfere with executive authority when it comes to military and national security matters. Constitutional scholars and World War II historians alike may recall a similar refrain from the infamous case of Korematsu v. United States.

Korematsu dealt with President Roosevelt’s Executive Order 9066, which authorized the then-secretary of war to issue a military order to remove Americans of Japanese descent from their homes and place them in internment camps. In a shameful episode of American legal history, the Korematsu court’s majority upheld the removal order’s validity.

In a powerful dissent, Justice Robert Jackson cautioned against such judicial carte blanche when it comes to military matters. He reasoned it will often be the case that, despite the absence of evidence to support its position, the military will demand judicial deference to its decisions. In Justice Jackson’s view, if judges simply rubberstamped every military policy and decision, it would deal “a far more subtle blow to liberty” than whatever harm the military policy or decision itself might cause.

Justice Jackson’s warning proved prescient. In the Navy SEALs case, the Navy demands exactly the kind of deference against which Justice Jackson cautioned. The Navy has yet to provide any evidence that unvaccinated SEALs pose an actual threat to its ability to defend the nation. Instead, the Navy continues to trumpet its zero-tolerance policy of rejecting all religious accommodation requests to the vaccine mandate. Justice Kavanaugh nevertheless believes judges are incompetent to determine whether the Navy’s actions are lawful.

But evaluating the lawfulness of government actions is precisely what judges do all the time. Even when the actions in question are made by military commanders. Military commanders, even those with the best of intentions, often make questionable decisions. There are times when both military and civilian judges are called upon to evaluate whether those decisions violate the Constitution and federal law. And despite Justice Kavanaugh’s reticence, even the Supreme Court has done so.

In a relatively obscure case — but one every first-year law student undoubtedly recalls — the Supreme Court rejected President Harry Truman’s attempt to seize steel mills in order to prevent labor strikes during the Korean War. President Truman argued he had the inherent constitutional authority as commander in chief to seize the steel mills and that courts should stay out of it.

In stark contrast to its deference in Korematsu, the Supreme Court rebuked President Truman holding that he lacked the authority to seize still mills, even during war. Justice Jackson — this time in the majority — once again counseled against too much deference to the executive:

“Command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress.”

The Court’s majority in Navy SEALs would do well to heed Justice Jackson’s counsel in both Korematsu and the steel mill seizure case. The Navy may indeed be well-intentioned in wanting every SEAL to be vaccinated. But it has produced precious little evidence to justify its other exceptions to the mandate and that vaccination is effective, that being unvaccinated poses a danger, or that the vaccine is the only means of protecting service members. Courts are our only bulwark against the not-so-subtle blow to liberty the Navy will inflict if it is left unchecked.

The ghost of Korematsu has haunted our nation for decades. Let us pray that the ghosts of 35 courageous Navy SEALs do not haunt us for decades to come. Our service members sacrifice much to ensure we continue to enjoy religious freedom in America. Their own religious freedom should not become yet another COVID casualty.

Note: This article was first published on Military Times and is re-published here with permission. The article presents the main points of an op-ed published in Military Times. This work was authored by Mike Berry. The full article can be found on the Military Times website, here.

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