Under U.S. law, what constitutes an illegal order from a president to the military?
Executive summary
U.S. law and military rules say a service member must refuse a “patently illegal” order that directs the commission of a crime, including orders that violate the Constitution, statutes, or military regulations (examples given in reporting include torture or intentionally killing civilians) [1] [2]. At the same time, experts and officials warn the line between unlawful and lawful orders can be murky in practice; courts and military procedures, not politics, typically determine illegality, and prosecutors require high intent to prove crimes like sedition or unlawful attempts to inspire insubordination [3] [4] [5].
1. What the law and military rules say in plain terms
The Uniform Code of Military Justice and the Manual for Courts‑Martial treat obedience as central but carve out that the duty to obey “does not apply to a patently illegal order, such as one that directs the commission of a crime.” Legal commentators and media explain that an order is unlawful if it violates the Constitution, federal law, or military regulations — for example, directing torture or intentionally killing civilians [1] [2] [5].
2. Who decides whether an order is illegal — the soldier, the court, or the commander?
Reporting shows tension between immediate duty and later legal review. Service members are trained that “following orders” is not an absolute defense and that they have an obligation to refuse clearly unlawful commands; but in practice, whether an order is actually illegal can be disputed and often only conclusively decided by courts or military review processes after the fact [2] [6]. Military.com and other outlets underscore that safeguards and review mechanisms exist but are imperfect and can leave gray areas when senior civilian leaders invoke broad statutory powers like the Insurrection Act [6].
3. Criminal charges and the high bar for sedition or inciting insubordination
High‑profile political claims — for example, calling advice to refuse illegal orders “seditious” — face limits under existing law. Multiple outlets quote legal experts saying urging service members to refuse unlawful orders generally is not sedition and would be difficult to prosecute because statutes targeting interference with military discipline require proof of specific intent to impair loyalty or morale [5] [3]. Reuters and CBS News report the FBI seeking interviews and the Pentagon considering actions, but those are investigatory steps, not proof of guilt [7] [3].
4. Recent political flashpoint: Democratic lawmakers’ video and government response
Coverage of a November 2025 video in which six Democratic lawmakers told service members they “can” and “must” refuse illegal orders illustrates how legal norms meet politics. News outlets note the lawmakers invoked the legal duty to refuse unlawful commands; the White House and some administration officials called the video dangerous or unlawful, prompting Pentagon and FBI reviews — but multiple legal analysts said the video’s content was not itself illegal [8] [4] [5] [7].
5. Practical examples and contested scenarios
Commentary and legal FAQs give concrete kinds of orders that are widely regarded as illegal: orders to commit torture, intentionally target civilians, or otherwise violate clear criminal law. There are thornier contexts — domestic deployments, uses of the Insurrection Act, or controversial strikes overseas — where legality is disputed, and commentators caution that relying solely on a soldier’s instant judgment without institutional review risks chaos but also that blind compliance can enable crime [2] [9] [6].
6. Competing perspectives and institutional incentives
Media and experts present two competing imperatives: maintaining the chain of command to preserve discipline and safety (an argument cited by White House and Pentagon spokespeople) versus the constitutional oath of service members to defend the Constitution even against unlawful orders (the view stressed by legal scholars and the lawmakers in the video) [8] [1] [5]. Reporting also highlights potential hidden agendas: political actors may label dissent “seditious” to silence critics, while others warn that public calls to disobey could be weaponized to erode cohesion even when legal grievances are real [4] [10].
7. What is not settled in these sources
Available sources do not mention a single, authoritative checklist a soldier can consult in the moment that definitively labels an order illegal; instead, they describe legal standards, training, and after‑the‑fact reviews [6] [9]. They also do not provide any final court ruling from 2025–2025 definitively defining all disputed recent orders as illegal — reporting records inquiries, commentary, and at least one court finding about a specific deployment cited by commentators, but not a comprehensive legal resolution of every contested order [11] [7].
Bottom line: law and military rules clearly make criminal or otherwise unlawful orders exempt from the duty to obey — a soldier must refuse a patently illegal command — but applying that rule in contested, high‑stakes political situations often requires later legal review, and prosecutions for urging refusal or for sedition face significant legal hurdles [1] [5] [3].