President Donald Trump is at the center of yet another bitter constitutional crisis. His political adversaries have mounted a concerted campaign urging military personnel to disobey any “illegal orders.” Trump responded to such calls by threatening to prosecute and even execute proponents for engaging in “seditious behavior.” Since the U.S. Constitution designates the president as commander-in-chief of the armed services, Trump is, of course, currently at the top of the military’s chain of command. Defiance by subordinates, he asserted, would constitute treason.
There are numerous important issues at stake. They include the proper extent of the president’s powers under the Constitution, preserving civilian control of the military, the nature of the oath that military personnel take to protect and defend the Constitution, and the appropriate remedy if it appears that the president as commander-in-chief has given an unlawful order.
According to the Washington Post, Trump’s wrath apparently was triggered by a video organized by Sen. Elissa Slotkin (D-Michigan), a former CIA analyst. It features Slotkin and other lawmakers (many of whom are military veterans) who contend that “threats to our Constitution aren’t just coming from abroad, but from right here at home.” They add bluntly: “Our laws are clear. You can refuse illegal orders.”
It was not entirely clear which specific orders upset the lawmakers, but the video came out right after the Trump administration authorized military strikes against alleged drug-trafficking boats in the Caribbean and Pacific, threatened military action in Venezuela, and deployed the National Guard into U.S. cities – actions that have sparked legal challenges and widespread concerns.
Slotkin and other critics contend that enlistees in the military take an oath to obey the Constitution, not the commander-in-chief or any other official. That point is true to some extent, but the concept of “unlawful orders” is not objective or self-defining. Even the oath of enlistment itself is somewhat murky. Personnel taking the oath swear both to “support and defend the Constitution of the United States against all enemies” and to “obey the orders of the President of the United States and the orders of the officers appointed over me.” Military officers swear the oath of commissioned officers, which contains very similar language.
The oaths do not directly address the problem of how to deal with a situation when an order from the president or another military official might violate the Constitution. The Uniform Code of Military Justice (UCMJ) requires members of the armed services to obey all lawful orders but also obligates them to disobey any unlawful order. Those twin requirements would seem to create a conceptual mess for anyone not having a law degree and an extensive background in the specifics of military law.
The language of the UCMJ and other relevant statutes also seems to leave a person in the military adrift about what exactly to do if he or she concludes that an order is indeed unlawful. If the individual disobeys an order that authorities later determine to be lawful, that person risks being court martialed. Conversely, if one abides by an unlawful order, that person might be deemed to have violated the oath to protect and defend the Constitution.
Probably the best course among a set of highly imperfect ones facing a member of the military who believes that an order is unlawful is to resign and then publicly state the reasons for refusing to execute the order. That course would at least be honorable, albeit somewhat perilous. Refusing to implement an order, but staying on in one’s post to sabotage the president’s policy is both dangerously disruptive and dishonorable.
As a society, America also faces a nasty dilemma. The danger certainly exists that a rogue president could negate important features of democratic rule and establish a dictatorship. Indeed, many of Trump’s opponents allege that he attempted to stage an executive coup on January 6, 2021, when his supporters rioted and penetrated the U.S. Capitol. His critics now contend that he is once again trying to acquire dictatorial powers.
If that allegation ultimately proves to be true, history likely would praise any military leaders who impeded or defied his attempt to become a dictator. But such a dire scenario is far from indisputable. Trump certainly has expanded executive power in dangerous and unhealthy ways from the standpoint of civil liberties and constitutional norms. However, many of his predecessors committed similar offenses and set numerous worrisome precedents. Yet most of the critics who excoriate Trump for his conduct either remained silent or explicitly endorsed earlier episodes. For example, a plethora of critics denounce the administration for attacking boats suspected of carrying drugs out of Venezuela and considering a regime-change war to oust that country’s leftist dictator. But most of those self-proclaimed guardians of the Constitution were conspicuously silent about or even supported Washington’s equally illicit regime-change crusades in such places as Iraq, Libya, Syria, and Ukraine.
Moreover, if the allegation that Trump is trying to establish a dictatorship proves to be bogus, encouraging military figures to defy the president’s orders risks creating chaos in the chain of command and badly weakening the military as a reliable institution. Worse, such disobedience undermines the core constitutional principle of civilian control of the military. America’s founders wisely designated an elected civilian official as the commander-in-chief of the military.
Do we really want members of the military, especially high-ranking officers, deciding whether or not to obey an order from the commander-in-chief? Embracing such a mentality entails the inherent risk of encouraging military leaders to substitute their judgment for that of the president. Down that path lies an enhanced risk of a coup by the military elite.
