How have appellate courts ruled on service members who disobeyed orders citing unlawfulness since 2020?
Executive summary
Since 2020, appellate courts and legal commentators have repeatedly underscored that U.S. service members may refuse only “patently” or “manifestly” unlawful orders and that the law presumes military orders are lawful unless a military judge later rules otherwise [1] [2]. Military appellate practice places the question of an order’s lawfulness with judges (not lay panels), and courts emphasize narrow defenses to disobedience to protect discipline [3] [4].
1. Courts insist discipline trumps guesswork — lawfulness is a judicial question
Military appellate sources and practice guides show a consistent pattern: an order is presumed lawful and whether it is unlawful is a question of law resolved by a military judge rather than by panel members; appellate courts therefore review those legal rulings—this preserves the presumptive legality of orders and limits after‑the‑fact justifications for disobedience [3] [5].
2. “Patently” or “manifestly” unlawful is the standard appellate decisions keep returning to
Both legal scholars and practice materials parsed by appellate courts use a narrow standard: service members must disobey only orders that are clearly illegal on their face — described as “patently” or “manifestly” unlawful — for example, orders to commit obvious crimes like shooting unarmed civilians [6] [1]. Appellate commentary stresses that most orders will not meet that high bar [6].
3. Appellate courts and commentators preserve post‑hoc review, not pre‑emptive refusals
Guidance and case law repeatedly make clear that the real determination of lawfulness typically happens after the fact in court-martial or judicial review; the Manuals and Rules for Courts‑Martial frame lawfulness as something a judge decides, meaning a service member who refuses an order riskily bets on how judges will later rule [2] [3].
4. Recent high‑profile debates helped spur litigation but not a new appellate rule
News coverage and legal commentary after high‑profile incidents (e.g., debates about presidential orders, domestic deployments, and public calls to “refuse illegal orders”) led to federal litigation and commentary but did not produce a wholesale change in appellate doctrine; courts and scholars instead debated implications—especially when presidential immunity rulings were seen to complicate proof of unlawfulness [7] [6].
5. Military appellate courts protect commanders’ authority while recognizing narrow defenses
Appellate doctrine and practice guides repeatedly balance two interests: preserving good order and enforcing the law. The appellate world enforces a narrow defense for disobedience while recognizing that, where an order is clearly criminal, disobedience is required — but appellate rulings and rule texts keep the standard tight to avoid eroding command authority [4] [1].
6. Civilian appellate courts weigh in on deployments and executive power, affecting service members’ choices
Civilian appeals in cases about domestic deployments and executive authority (such as disputes under the Posse Comitatus framework and other emergency powers) have produced a split of decisions and underscored uncertainty about whether some high‑level orders are reviewable — a split appellate landscape that complicates a service member’s ability to predict whether refusal will be vindicated [8] [7].
7. Practical guidance from military lawyers and NGOs reflects appellate constraints
Practitioner and NGO materials aimed at service members uniformly advise caution: consult counsel, do not refuse unless the illegality is obvious, and expect that courts will decide lawfulness later. They note the UCMJ and Rules for Courts‑Martial neither fully define “lawful” nor make it safe for pre‑emptive disobedience absent clear illegality [9] [2].
8. What appellate records do not show — limits of available reporting
Available sources document doctrine, commentary, and litigation trends but do not provide a comprehensive catalogue of every appellate decision since 2020 that directly ruled for or against individual service members who disobeyed orders claiming illegality; specific case outcomes or counts are not listed in the materials provided here (not found in current reporting).
9. Bottom line for service members and policymakers
Appellate practice since 2020 reaffirms a narrow, judge‑centered test: disobey only orders that are manifestly criminal; expect lawfulness to be litigated after the fact; and recognize that splits in civilian appellate rulings about executive power create legal uncertainty—advice from courts, commentators, and counsel converges on risk‑averse behavior unless illegality is unmistakable [3] [1] [8].