The Pentagon’s vaccine imbroglio: where to go from here?
What could Congress’ repeal of the military vaccine mandate mean for morale and discipline in the armed forces? Should those who were separated for failing to obey vaccine orders be reinstated? These and related matters were raised by reporters recently, so this post aims to give you a perspective as you decide what you think the answers should be.
Lawfire® readers might recall that the issue of COVID-19 vaccinations in the military was discussed in a number of previous posts (see e.g., here, here, and here), so longtime readers may see a few familiar passages.
“Number one priority”?
At the outset, let’s ask these questions: could the Pentagon have done a better job at handling the vaccine issue from the very beginning of Secretary of Defense Lloyd Austin’s term? Was a chain of events set in motion that resulted in thousands of people making decisions that harmed, perhaps irrevocably, their otherwise honorable careers?
Consider that in his “Day One” message, Secretary Austin said “keep[ing] this country safe” is “job one” – and the only threat to that safety he referenced was the pandemic. If there was any ambiguity about what he meant, the Department of Defense (DoD) issued a press release citing Max Rose, Secretary Austin’s special advisor on COVID-19, for the proposition that Austin’s message “firmly established that combatting (sic) the pandemic is [Austin’s] number one priority.”
If “combatting the pandemic” really was Secretary Austin’s “number one priority,” what can explain his initial decision not to mandate the COVID-19 vaccine for those in uniform? Yes, at that time there was a process that may have (but not necessarily) required Presidential action, but there was a clear legal path for Secretary Austin to order vaccinations if he really wanted to do so. There was lots of precedent: dating back to the Revolution, there is a long history of routine vaccination requirements for military members.
Inexplicably, however, it wasn’t until August 2021 that Secretary Austin finally issued a memorandum announcing he “determined that mandatory vaccination against coronavirus disease 2019 (COVID-19) is necessary to protect the Force and defend the American people.” Exactly why that determination could not have been made on “Day One” so that the process to require the shots could have gotten underway immediately has never been persuasively explained.
The consequences of delaying the mandatory vaccination order
By delaying the order mandating vaccines, Secretary Austin allowed objections to the shots to fester and grow for months. During this period of voluntary vaccination, many troops found religious, health, and other rationales for refusing the shot, and most likely told their military superiors, as well as family and friends, about their opposition.
By the time the Pentagon reversed itself and made the vaccination mandatory, thousands of troops would then have to compromise the positions they announced during the voluntary period. Consequently, I am not especially surprised that so many who had been declining voluntary vaccinations for months refused the mandatory shots, and thus were eventually discharged.
The law of military orders – some Qs & As
Everyone discharged for refusing the vaccine was involuntarily separated administratively. Involuntary administrative discharges are not uncommon, and they do not depend upon–or result in—a criminal conviction.
Nevertheless, the law of military orders that would support the discharges has some relevance. Much would be beyond the scope of this essay, but here a a few aspects you may find of interest:
An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Emphasis added).
There was nothing “patently illegal” about the vaccination mandate so as to defeat the inference of lawfulness accorded military orders.
The issue of “patently” illegal orders was discussed by the all-civilian Court of Military Appeals (CMA) in the 1973 case of Lt. William Calley. CMA cited with approval this quote from Colonel William Winthrop (1831-1899) who the Supreme Court calls the “The Blackstone of Military Law”:
But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness . . . (Emphasis added.).
Can a lawful order be refused if the servicemember sincerely fears it is dangerous to comply with it? No. As a military appellate court put it (in a case about a sailor who refused to do maintenance on a reactor out of fear of radiation):
Appellant’s contention that duress, amounting to a legal defense, can inhere in a lawful order requiring performance of military duty “in harm’s way” simply strains credulity. Regardless of the sincerity of his beliefs, the premise upon which he rests this defense has no basis in military law.
How long does a servicemember have to decide about obeying an order? Again, the Manual is helpful:
Time for compliance. When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused’s present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may. (Emphasis added).
Can a sincere religious or philosophical belief be a legal basis to refuse a lawful order? Generally, no. The Manual unequivocally states that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of any otherwise lawful order.”
The obvious rationale for this rule is that in a pluralistic country like the U.S., there are a multitude of religions and philosophies, and the armed forces could not efficiently or effectively function if it needed to cater to each belief before expecting obedience to a lawful order.
Consider a pro-life commander who sincerely believes––as the Pope does––that abortion is “murder.” That belief would not justify failing to follow the Secretary of Defense’s directive aimed at aiding military personnel wanting to obtain abortions. For example, because the use of appropriated funds for travel and transportation for a service member wanting to terminate a pregnancy has been deemed legal, the commander must authorize such expenditures irrespective of the commander’s personal beliefs.
The Religious Freedom Restoration Act
The Religious Freedom Restoration Act (RFRA) does impact the law of military orders. It holds that if a person’s exercise of religion is “substantially” burdened by a government action, the government must demonstrate (1) a “compelling governmental interest” and (2) that the proposed action is “the least restrictive means of furthering that compelling governmental interest.”
As to the latter factor, the Supreme Court observed long prior to RFRA that it “is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”
In any event, the RFRA does not appear to be an insuperable barrier to a military vaccine mandate. In a March 2022 case (Austin v. U. S. Navy Seals 1–26) the Supreme Court by a 6-3 vote granted a partial stay of a lower court ruling that would have precluded the military “from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.”
In concurring with the decision, Justice Kavanaugh addressed RFRA. Though three dissenters disagreed with him, he said:
“RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.”
Moreover, contrary to what some people seem to think, the RFRA does not make a vaccine order illegal. Rather, it provides an exception only applicable to certain persons in particular situations.
When circumstances change, the applicability of the exception may end. For example, in one circumstance there may be available a less “restrictive means of furthering that compelling governmental interest,” but that means might simply not exist in another situation. In a dangerous world, the military has to be able to deploy people at any time, and anywhere, to do whatever duty needs to be done. Options as to “less restrictive means” may be non-existent in many circumstances.
Consider as well an issue that specifically concerned some religious (and other) military members, that is, the reported use of cells from a fetus aborted in 1973 at some stage of the COVID-19 vaccine development. Notably, however, the Vatican conceded in 2020 that “[i]t is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process…”
Perhaps more importantly, DoD now offers Novavax, a vaccine in which, the maker confirms, ”no human fetal-derived cell lines or tissue were used in [its] development, manufacture or production.”
The Archbishop of Military Services’ statement
It is true that following the Secretary’s vaccine mandate order, the Archbishop of Military Services issued a statement about vaccinations that some followers might have found confusing. He admitted that, in accord with the Vatican, the U.S. Conference of Catholic Bishops found “that it is morally permissible to receive the COVID-19 vaccinations currently available in the United States.”
The Archbishop, however, went beyond relating pastoral guidance and delved into providing, in effect, legal advice. Specifically, he cited the 1981 case of Thomas v. Review Bd. of Indiana, to suggest that “federal law” allows military members to refuse the vaccine if taking it violated their “conscience-based objections.” The problem? Thomas was not a military case; rather it involves a civilian unemployment compensation issue litigated under state law.
As validated in Supreme Court precedent, military members live in a significantly different legal environment than do civilians. In Parker vs. Levy, the Court noted that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian” and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”
Accordingly, the Manual for Courts-Martial provision noted above, (precluding religious or philosophical grounds as a proper basis for disobeying a lawful order), aligns with constitutional principles as they are applied to members of the armed forces. (Keep in mind that, as explained above, RFRA only provides an exemption if there is a “less restrictive means” available.)
When the vaccines were finally ordered, the mandate did spark various litigation efforts by those opposed to the shots. Despite some lower court victories, it is doubtful they would have been successful had the issue reached the Supreme Court on the merits.
Why? In the March 2022 Supreme Court ruling noted above (granting a partial stay of an injunction that would have barred the military from making operational decisions about vaccine refusers), Justice Kavanaugh noted in his concurrence the “bedrock constitutional principle” that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”
He also cited several precedents (including Gilligan v. Morgan discussed below) that essentially hold that such decisions are military judgements for which judges lack competence to overrule. Consequently, Justice Kavanaugh said he saw “no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.”
I think the underlying sense of Kavanaugh’s opinion would have prevailed with the Court as a whole if the substantive issue had reached it, even if other justiciability theories were employed.
Congress inserts itself
Nevertheless, Congress decided to insert itself into the vaccine issue (as it can under its constitutional authority to “make rules” for the military). Specifically, the National Defense Authorization Act (NDAA) required the Secretary to rescind his vaccine mandate. However, the NDAA provision did not address what to do about the 8,000 servicemembers who were discharged for refusing the shots, and who may now feel vindicated by Congress’ action.
I do not believe that the courts–the Supreme Court anyway–will require the reinstatement of vaccine-refusers who have been discharged. Among other things, the Senate specifically considered an amendment to the NDAA doing just that but it did not pass.
As a result, there is little likelihood that the Supreme Court would countenance judges who, if they mandated reinstatement, would in essence be second-guessing the elected branches of government as to the composition of military forces. In Gilligan v. Morgan the Court said
It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. (Emphasis added).
Impact of congressional intervention
Clearly, it is only Congress’ intervention that blocks the execution of an otherwise routine military order directly related to the readiness of the force. That said, Congress’ NDAA provision does not mean that the order was unlawful when given, or that discharge actions were improper when imposed.
Undoubtedly, Congress’ direct intervention in a military discipline matter impacts the credibility of the military chain of command for the still-serving force. The Washington Post quoted an unnamed officer who enunciates the problem:
“I look like a clown now,” the officer said, intimating that, by reversing the mandate, lawmakers had weakened the military’s ability to enforce and maintain good order and discipline. “What happens when the next [unpopular directive] comes along, whether for vaccines or something else? I’ve lost my credibility to say ‘Do this’ when they know they can probably wait me out.”
“I have been completely undercut in trying to uphold the standards dictated to me from on high,” the officer added. “My sailors will have a hard time trusting me in the future when I say that some controversial policy must be complied with.”
The Post also cited Katherine L. Kuzminski, a military policy expert at the Center for a New American Security in Washington. She pointed out that “disciplinary problems can arise when rank-and-file troops see the erosion of rules set clearly and forcefully by senior leaders.” Kuzminski warned that Congress’ action “opens the door for more pushback in the future.”
Ms. Kuzminski is right. This episode could invite military members to again seek out politicians to reverse a lawful order with which they disagreed. Does the military need that politicization at any time, but especially at this moment in history?
Undersecretary of Defense for Personnel Gilbert Cisneros was asked at a hearing on Capitol Hill why the Department of Defense was still reviewing cases of those who refused the vaccine even after the mandate was ended. He rightly pointed out that “[c]ompliance with lawful orders is not optional in the military, and leaders within the military service took appropriate, disciplinary action, including separation, when appropriate, to maintain good order and discipline.” Secretary Cisneros added:
It’s very important that our service members go and follow orders when they are lawful. And there were several, or thousands that did not. And so those services are going through a process to review those cases to make a determination what needs to be done.
Should vaccine refusers be reinstated?
Obviously, the Pentagon still has the policy question as whether to reinstate thousands of people who defied the vaccine order. Military leaders need to tread cautiously here, and think carefully about the potential impact on morale and discipline of welcoming back and embedding thousands of those who refused a lawful order.
Why? Unfortunately, it is simply impossible to predict what (if any) lawful orders those among a reinstated group might decide to disobey in the future, or in what ways the reinstatement may fuel others to disobey lawful orders both now, and into the future, then turning to politicians to support their actions.
It could in fact be a significant paradigm shift with respect to the fundamentals of military discipline. For its part, the Supreme Court has long appreciated the importance of obedience in the armed forces. In Parker v. Levy, the Court cited the 1890 case of In Re: Grimly for the proposition that:
“An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.” (Emphasis added.)
What Congress has done seems to be exactly what the Supreme Court warned against: It raises questions as to a servicemember’s “duty of obedience” to military command.
How important is this? In the 1983 case of Chappell v. Wallace the Supreme Court noted what is virtually an axiom in the armed forces:
The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection. (Emphasis added.)
This is no small matter for military readiness–and effectiveness–especially today. We live in an age of what many are calling “hyperwar,” and consequently, experts insist that decisions must be made at “warp speed.” A corollary would seemingly be that obedience to lawful orders must likewise be as rapid.
Again, what would it mean for the future to embed the thousands who refused a lawful order?
Some might understandably contend that the vaccine mandate did not just offend some individuals’ “conscience, religion, or personal philosophy,” it was also unwise and unnecessary on other grounds. Accordingly, they might conclude that, irrespective of other factors, no one should be penalized for disobeying an unwise and/or unnecessary order, especially one that Congress has now blocked.
This seems to miss the point. The order was lawful when issued, and military members had an obligation to obey it. Specifically, the unlawful defiance was complete when they choose not to comply. Of course, an order may appear to the recipient or others to be imprudent, poorly handled or even unnecessary, but that does not necessarily mean it actually is, or that–in any event–it is unlawful.
No military—or society—can countenance unlawfulness based simply on speculation that the law might be changed in the future.
What should a military member do if confronted with an irreconcilable moral dilemma about a lawful order?
In a thoughtful 2018 article, Right vs. Right: Personal Beliefs vs. Professional Obligations, Brigadier General Linell A. Letendre and Dr. Martin L. Cook recognized that for some individuals certain moral dilemmas cannot be reconciled with their military duties. They advised:
“[I]t is perfectly possible any individual member of the profession might think that he or she has a personal moral belief that is fundamentally at odds with those professional obligations. But when that occurs, if that individual strongly feels he or she cannot or will not subordinate those beliefs to his or her professional obligations, the proper conclusion should cause the individual to leave the profession.”
As sympathetic as the cases of many vaccine-refusers may be, the Pentagon still needs to ask itself hard questions before reinstating anyone. It should start with this: can they rely upon those who refused the vaccination to now comply immediately with all lawful orders they might receive in the future?
Or would commanders have to expect those reinstated would still filter lawful orders through their personal belief system before deciding to comply?
Can a military really effectively operate that way?
The Pentagon also needs to ask itself what the effect will be on all the troops who did comply with the order to now have the refusers reinstated among them.
It is good to hear Secretary Cisneros say the military services are going through each case to evaluate what should be done, as a case-by-case approach is the only reasoned course of action. A general amnesty would be a mistake.
The reality is, as the Supreme Court tells us, the “essence of military service is the subordination of the desires and interests of the individual to the needs of the service.” No one ever said that doing so would always be easy, particularly as the Court also advises that “the rights of [those] in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty,”
This means they will need to obey all lawful orders, including those that may at times conflict with their personal choices or beliefs. Those who cannot make that commitment might still be able to serve this great country in important and valued ways, but not as uniformed members of the armed forces.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!