With the unprecedented gathering of general and flag officers and their senior enlisted advisers at Quantico now in the rearview, one thing is certain: at no time since 1860 have military leaders confronted such a grave challenge to their oath to support and defend the Constitution.
There are two fundamental principles each member of the military learns when he or she takes the oath of office: first, that superior orders are presumed to be lawful and must be scrupulously obeyed; and, second, that if there is ever a conflict between orders and the law, the law prevails. Over the past year, these principles have come into sharp focus. America’s military personnel – volunteers all – are increasingly alert to the prospect that they may be asked to prioritize loyalty to an individual over their rights and responsibilities under the law.
In 2024, the Supreme Court ruled in Trump v. United States that a president is absolutely immune from prosecution for acts within the scope of his core constitutional authority. In the military context, what this could mean is that the other branches of government – Congress and the Judiciary – may not make or enforce any law that would make him criminally liable for any act performed, decision made, or order given in his capacity as commander-in-chief. Although the contours of the Supreme Court’s decision have yet to be fully tested or defined, what is already clear is that – impeachment aside – it effectively places a president above the law and eliminates any legal incentive for him to exercise restraint. This becomes even more dangerous when, as now, a president is ineligible for re-election, since the ballot box does not serve as a check.
The Supreme Court majority’s rationale was that if a president is subject to prosecution for exercising his exclusive constitutional authority – authority widely understood to include at least some aspects of his role as commander-in-chief – he might be “unduly cautious in the discharge of his official duties.” In her dissent, Justice Sonia Sotomayor offered a couple of military examples – “nightmare scenarios” such as staging a military coup or ordering SEAL Team Six to execute a political rival – to illustrate her conviction that, as a result of the majority’s decision, “the President is now a king above the law.”
The majority focused on the president’s authority and prerogatives; the dissenters focused on the potential havoc an unrestrained president might wreak. It’s understandable that no one examined the impact of this decision on military personnel who might be ordered to carry out orders for which a president can no longer be held accountable. Understandable because, other than Justice Samuel Alito (who served on active duty in the Army for three months following his law school graduation) no Justice has any military experience. Unfortunately, by failing to consider the impact of its decision on the military, the Court placed the entire burden of dealing with an unbounded commander-in-chief upon those serving in uniform and other federal employees who are subject to his orders.
When Is an Order Unlawful?
Following the reelection of Donald Trump, much has been written about the military’s obligation to obey lawful orders and right to disobey unlawful orders. Some have engaged in the academic exercise of drawing lines between lawful and unlawful orders. Others have suggested that military leaders standing firm against this president’s autocratic tendencies may be American democracy’s last hope. Few commentators have considered how Trump v. United States has changed the distinction between lawful and unlawful orders. Before the Supreme Court’ s decision, an order to kill unarmed civilians would have universally been considered an unlawful order. Think: My Lai Massacre, when hundreds of civilians were murdered by U.S. soldiers in Vietnam in 1968. Today, that conclusion is far less certain. Why?
First, although most scholars believe limiting the president’s criminal accountability has no effect on the prosecution of military personnel who violate the law pursuant to his orders, the case left a door open to the notion that absolute immunity might also extend to the president’s agents. If the Court is truly concerned that a president subject to criminal prosecution might be “unduly cautious,” why limit absolute immunity to him? If the Court wants to facilitate bold action, limiting immunity to him alone could mean that bold action will never extend beyond the Oval Office door.
Next, we must always remember that the president has the power to pardon anyone who violates federal criminal law, including the Uniform Code of Military Justice. During his first administration, Trump pardoned or granted clemency to military members accused or convicted of war crimes. Given that track record, it’s likely that he would pardon anyone who commits a military offense pursuant to his orders.
Finally, if criminal law doesn’t apply to the president when he exercises his core constitutional authority, it is no wonder that some in uniform might question: can any order he issues to the military be considered “unlawful?” To make matters even more confusing, shortly after his second inauguration, Trump seized the opportunity to fill this Court-created legal void by issuing an executive order stating that only the “President and the Attorney General … shall provide authoritative interpretations of law for the executive branch.” In other words, for the armed forces, the law is what Trump and Attorney General Pam Bondi say it is.
Americans who cling to the hope that the military will constrain the president’s excesses by disobeying his unlawful orders must recognize that in addition to the confused legal landscape, U.S. military personnel face an unprecedented tsunami of executive actions intended and designed to secure absolute and unquestioning military obedience. Hegseth’s admonition to America’s senior military leaders at Quantico to “do the honorable thing and resign” if his words made their “heart[s] sink,” made it clear that any act of what he considers disloyalty or dissent will be crushed.
Firing the Judge Advocates General of the Army and Air Force was a signal to the armed forces that the law will no longer constrain military operations. Sending 600 JAGs to serve as immigration judges will further thin the ranks of military attorneys available to help commanders and other affected personnel distinguish lawful from unlawful orders.
Targeting suspected “narcotrafficker” boats transiting between Venezuela and points north, reportedly killing 21 people to date, without a plausible legal justification has further eroded the idea that military operations must be conducted in lawful ways.
The subtext in these and many future military decisions, actions, and operations has been and will likely be: the law is what the president says it is.
The Law is Still the Law
If disobeying unlawful orders is no longer a clear legal option or predictable outcome, what is to be done?
First, every military leader, whether in attendance at the Quantico photo op or not, must understand that the law is still the law, even if the Court is willing to exempt the president from its consequences. Rather than maintaining a visible distance from their JAGs, who are increasingly being treated as irrelevant, commanders must proactively seek their legal advice.
For their part, JAGs must understand that the administration’s efforts to marginalize them has ironically underscored their importance. The only way the armed forces can continue to operate in a democratic society is if they understand what the law says and where it applies. If the law as it appears in the Constitution, statute, regulation, and judicial decisions conflicts with the law as the president has defined it or with orders issued in his name, JAGs need to identify, document, and report those conflicts. This is their duty as officers, attorneys, and citizens.
If commanders are ordered to engage in acts or operations affected by conflicting legal interpretations, they must first find a way to achieve stated objectives within the bounds of international and domestic law as commonly understood, not as the president has egregiously misinterpreted them. If that’s not possible, they must speak up, put their concerns in writing, and be willing to resign if necessary.
Lest any commanders or JAGs be lulled by the recent confusion over lawful and unlawful orders into believing that obeying orders commonly regarded as unlawful will be rewarded, not punished, they should understand that their careers, liberty, and honor are not the only ones at stake. The troops they lead are watching. Commanders and JAGs must model proper behavior, to include respect for the Constitution and the rule of law.
Finally, former and retired military leaders need to speak out. Understanding that retired regular officers remain subject to the Uniform Code of Military Justice, many will consider the risks too great. Those who do speak out do so for many reasons, not the least of which is their ongoing commitment to the current generation of leaders they have shaped and led. Speaking out professionally and respectfully is a proper way to support the generations of men and women who have succeeded us in uniform.
Our military is and must remain capable of lethality. But lethality and honor must coexist in a democratic society’s armed forces. Making that coexistence a reality today is as great a challenge as any our nation has faced.
