THE UNLAWFUL ORDER DOCTRINE AND THE CONSTITUTIONAL VOID
For months, commentators have been repeating a reassuring
mantra:
“The military is not required to obey an unlawful order.”
It is true.
It is also dangerously incomplete.
Most Americans assume there is a clear legal pathway for
determining whether a presidential order is lawful, enforceable, or binding on
a military officer. They imagine there must be a statute, a defined process, or
a court that can step in if a president, any president, attempts to misuse the
armed forces for illegal or unconstitutional ends.
But this belief is false.
The unsettling truth is that while the doctrine exists,
the mechanism for enforcing it does not. This creates a constitutional
void at the precise point where the republic is most vulnerable.
I. What the Law Actually Says
Contrary to popular misconception, there is no single
statute that says a service member “shall disobey unlawful orders.” The duty is
derived from several overlapping principles:
1. The UCMJ binds service members only to “lawful”
orders.
Article 92 criminalizes failure to obey “a lawful order,”
implying that an unlawful one carries no force.
But it does not define how to determine that lawfulness in the moment.
2. The Manual for Courts-Martial
It states that a lawful order must relate to military duty,
must not conflict with the Constitution or statutes, and must not violate
rights or the law of war.
3. The Nuremberg Principles
Adopted into U.S. military teaching, they reject “I was just
following orders” as a defense when the order is manifestly unlawful.
4. U.S. v. Calley
After the My Lai massacre, the court held that soldiers
remain liable for obeying “manifestly illegal” orders, even in wartime.
Together these sources form the doctrine.
But they share one weakness: none provides a mechanism for advance review.
II. The Conundrum: No Court Will Review an Order Before
It Is Carried Out
This is where the warm reassurance of the doctrine dissolves
into dangerous ambiguity.
Civilian courts will not intervene.
The Supreme Court has long held—most notably in Gilligan
v. Morgan—that courts cannot supervise military operations or review
hypothetical or anticipated orders.
Federal courts cannot issue advisory opinions.
A service member cannot ask a judge:
- “If
ordered to deploy troops domestically, must I obey?”
- “If
ordered to arrest political opponents, may I refuse?”
- “Is
this presidential directive unlawful?”
The case would be dismissed for lack of ripeness, standing,
and justiciability.
Military courts only act after the fact.
The only venue where legality is reviewed is a
court-martial, and only after a service member has:
- Disobeyed
the order, or
- Obeyed
it and is being prosecuted for the resulting act.
In other words:
The system resolves unlawful order disputes only by
punishing the person who made the incorrect guess.
There is no channel for a declaratory judgment.
No injunction.
No emergency review.
No real-time constitutional referee.
III. Who Carries the Burden? The Individual Officer
The unlawful-order doctrine relies entirely on the courage
and conscience of individual service members.
There is no institutional safeguard.
No supervisory court.
No administrative review panel.
A lieutenant colonel, a JAG officer, a sergeant, or a
four-star general must make a split-second determination:
- Is
this order legal?
- Constitutional?
- Within
the President’s authority?
- A
violation of the law of war?
- A
domestic deployment forbidden by the Posse Comitatus Act?
- A
misuse of force?
If they guess wrong, they face court-martial, prison, or
career destruction.
If they guess right and obey an unlawful order, they face
criminal liability.
This is not a system designed for clarity or stability.
It is a system designed for deterrence through fear, not prevention.
IV. The Trump Problem (and Any Rogue Executive)
The danger is not ideological; it is structural.
A president inclined to misuse power could exploit the void:
- by
issuing orders in a gray zone,
- by
couching political objectives as national security operations,
- by
relying on commanders’ reluctance to risk their careers, and
- by
knowing that no court can intervene unless someone first refuses.
This is not about Donald Trump alone.
It is about any president, now or in the future, who discovers how much
room the law leaves for mischief.
The safeguards are not judicial.
They are not legislative.
They are not procedural.
They are personal.
They depend on the integrity of individual officers.
That is a terrifying place for a republic to leave its
constitutional survival.
V. What Must Be Done
If the republic is to protect itself, we need reforms that
introduce:
1. A mechanism for pre-order legal review.
An emergency panel of federal judges, or a standing
constitutional review board, could issue binding determinations on the legality
of contested orders.
2. Statutory clarification of unlawful orders.
Congress can define:
- what
constitutes an unlawful domestic deployment,
- limits
on use of force,
- restrictions
on political uses of the military, and
- explicit
officer protections for refusing unlawful commands.
3. A safe-harbor statute.
Service members who refuse orders based on good-faith
constitutional objections should be shielded from retaliation until lawfulness
is determined.
4. Public transparency.
The nation must understand the fragility of this area of law.
Silence empowers the worst actors.
VI. The Conclusion No One Wants to Say Aloud
The American military is trained to obey lawful orders.
It is also trained to disobey unlawful orders.
But there is no reliable way to know which is which in the moment.
That is the flaw.
That is the danger.
And that is why merely repeating “the military won’t follow
illegal orders” is not enough.
We must revise the law, clarify the process, and protect the officers who
safeguard the republic, not after the fact, but before the damage is done.
Until then, the survival of constitutional government rests
on individual judgment, individual courage, and the hope that no president will
test the system to the point of failure.
Hope is not a legal safeguard.
We need real ones.
William James Spriggs
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