Whether the Militia Clauses of the Constitution, Article I, Sections 8, Clauses 15 and 16, prohibit the federal government from imposing a COVID-19 vaccination requirement on members of the National Guard acting in their state militia capacity

No question identified. : judgment on June 12, 2023, and its opinion (App., infra, la-47a) is published at 70 F.4th 817. The opinion of the district court (App., infra, 48a-59a), is reported at 608 F. Supp. 3d 467. Unless extended, the time within which to file a petition for a writ of certiorari will expire on September 10, 2023. The jurisdiction of this Court would be invoked under 28 U.S.C. 1254(1). 1. In August 2021, after the Food and Drug Administration approved the first COVID-19 vaccine, the Secretary of Defense announced that vaccination against COVID-19 would be added to the list of vaccines required for servicemembers, including members of the National Guard. See App., infra, 4a. The day after the Secretary announced the COVID-19 vaccination requirement, respondent issued an executive order providing that “on a statewide basis no governmental entity can compel any individual to receive a COVID-19 vaccine”; he later clarified that the executive order applies to all members of the Texas National Guard. Id. at 5a-6a (brackets and citation omitted). 2. In January 2022, respondent filed suit, challenging the COVID-19 vaccination requirement as violating, inter alia, the Militia Clauses of the Constitution, Art. I, § 8, Cls. 15, 16. See App., infra, 6a-7a. Respondent subsequently moved for a preliminary injunction, which the district court denied. Id. at 48a59a. The court found that respondent failed to demonstrate that he is likely to succeed on the merits of his claim “that the challenged executive actions exceed * * * constitutional authority.” Id. at 58a. 3. a. Respondent appealed. After the court of appeals heard oral argument but before it issued its decision, Congress enacted and the President signed into law the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (NDAA), Pub. L. No. 117-263, 136 Stat. 2395. See App., infra, 7a. The NDAA directed the Secretary of Defense to rescind, within 30 days, “the mandate that members of the Armed Forces be vaccinated against COVID-19.” § 525, 136 Stat. 2571. The Secretary promptly complied with Congress’s direction, rescinding the COVID-19 vaccination requirement on January 10, 2023. App., infra, 7a. The Secretary’s memorandum rescinding the requirement also provided that “no individuals currently serving in the Armed Forces shall be separated solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds.” Ibid. (brackets and citation omitted). The court of appeals requested supplemental letter briefing from the parties addressing the recission of the COVID-19 vaccination requirement. C.A. Doc. 54, at 1 (Jan. 11, 2023). The government’s brief argued that the appeal was moot because respondent “asked the district court to enjoin a directive of the military that no longer exists.” C.A. Doc. 58, at 3 (Jan. 18, 2023). The government also argued that the entire case was moot because respondent “sought only prospective relief” and “any claim for prospective relief against a non-existent requirement is now moot.” Id. at 4. b. The court of appeals reversed and remanded. App., infra, la-47a. The court determined that respondent is likely to succeed on the merits of the Militia Clauses claim and remanded for the district court to consider the remaining factors. Id. at 40a, 46a-47a. The court of appeals first held that the Secretary of Defense’s recission of the COVID-19 vaccination requirement did not moot the case. App., infra, 7a-9a. The court noted that the Secretary “did not simply rescind the vaccine mandate and all related enforcement measures,” but instead “reserved the ability to punish Guardsmen who didn’t seek a religious, administrative, or medical accommodation while the mandate was operative.” Id. at 8a-9a. Because respondent represented that over 1000 members of the Texas National Guard “remain unvaccinated” and “never sought an accommodation while the mand