Military leaders today face one of the most serious challenges of confronting a direct threat to the oath they take to support and defend the Constitution. Every service member is trained on two fundamental principles: orders from superiors are presumed to be lawful and must be strictly followed, but if there is ever a conflict between those orders and the law, the law always prevails.
Over the past year, these principles have been tested, forcing American soldiers to grapple with the prospect that they may be asked to prioritize loyalty to an individual over their rights and responsibilities under the law.
Supreme Court Rules President is Above the Law
The core of this crisis stems from the 2024 Supreme Court ruling in Trump v. United States, which found that a president is protected by absolute immunity from criminal prosecution for acts within the scope of his core constitutional authority. Because this authority is widely understood to include aspects of the Commander-in-Chief role, this decision effectively places a president above the criminal law and eliminates a major legal incentive for them to exercise restraint.
The Supreme Court majority explained its decision by arguing that a president subject to criminal prosecution might be “unduly cautious in the discharge of his official duties.” In contrast, Justice Sonia Sotomayor, in her dissent, offered “nightmare scenarios”—such as staging a military coup—to illustrate her conviction that, as a result of the majority’s decision, “the President is now a king above the law.”
By failing to fully consider the military context, the Court inadvertently placed the entire burden of dealing with an unbounded commander-in-chief upon those serving in uniform. This unprecedented situation has profoundly confused the distinction between a lawful and an unlawful order. Before the Supreme Court’s decision, an order to kill unarmed civilians would have been universally considered an unlawful order, yet today, that conclusion is far less certain.
One factor is the door the case left open to the idea that absolute immunity might extend to the president’s “agents” or subordinates, meaning those carrying out the order. Furthermore, the president has the absolute power to pardon anyone who violates federal criminal law, including the Uniform Code of Military Justice (UCMJ). This means any service member following a potentially unlawful order has a high likelihood of avoiding punishment.
Finally, if the criminal law doesn’t apply to the president when he exercises his core constitutional authority, some in uniform may question whether any order he issues can be considered “unlawful.” This legal void can be compounded by executive actions, such as Trump signing an executive order stating that only the “President and the Attorney General … shall provide authoritative interpretations of law for the executive branch,” effectively meaning the law is whatever the executive branch says it is.
What Does This Mean for Military Leaders?
When coupled with explicit warnings—such as an admonition to senior military leaders to “do the honorable thing and resign” if his words made their “heart[s] sink“—military personnel face an unparalleled tsunami of actions designed to secure absolute and unquestioning obedience.
However, every military leader must understand that the law is still the law, even if the president is personally exempt from its consequences. Rather than maintaining distance from their military attorneys, the Judge Advocates General (JAGs), military commanders must actively and proactively seek their legal counsel. For their part, JAGs must identify, document, and report any conflicts between the law as it appears in the Constitution or statute and the law that the President misinterpreted. This is their duty as officers, attorneys, and citizens.
Commanders and JAGs must understand that their careers, liberty, and honor are at stake, and they must model proper behavior—including respect for the Constitution and the rule of law—for the troops they lead. The military is and must remain combat ready, but that power and honor must coexist in a democratic and free society.
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