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What federal and military case law defines when a service member must disobey an unlawful order (Supreme Court, CAAF, and service courts)?
Executive summary
The basic rule in U.S. military law is that service members must obey lawful orders and refuse unlawful ones; unlawful orders are those that violate the Constitution, federal statute, military regulations, or that require commission of a crime — and courts and manuals limit the duty to disobey to orders that are “manifestly” or “patently” illegal, i.e., those a person of ordinary sense would recognize as unlawful [1] [2] [3]. Recent litigation over domestic troop deployments and a 2024–25 Supreme Court decision about presidential immunity have injected uncertainty into how and when troops should decline presidential orders, and commentators and practitioners point to competing interpretations in federal and military courts [4] [5].
1. The legal baseline: UCMJ, Article 92 and the Manual for Courts‑Martial
Military law codifies the duty to obey lawful orders and the corollary duty to refuse unlawful ones. Article 92 of the UCMJ governs failure to obey and treats lawfulness as measured against the Constitution, U.S. law, and military regulations; courts and practice notes also say an order “may be inferred to be lawful” and is “disobeyed at the peril of the subordinate” unless it is clearly unlawful [1] [6]. The Manual for Courts‑Martial supplies a defense framework: acting under orders is a defense unless the accused knew the orders were unlawful or a reasonably ordinary person would have known them to be unlawful (RCM 916(d) as discussed in reporting) [2].
2. What “manifestly” or “patently” illegal means — military and academic framing
CAAF precedent and long‑standing military doctrine narrow the disobedience duty to orders so plainly illegal that no rational doubt exists. Academics and practice guides cite language that an order is patently illegal when “a man of ordinary sense and understanding” would know it to be unlawful — a standard the Supreme Court historically and military writers trace back through Winthrop and older authorities [3] [7]. Legal scholars summarize that the law protects military discipline by requiring refusal only for orders that “do not prompt a service member to ‘reason why’ the order is unlawful” [8].
3. Key case law touchpoints — where federal courts and military courts intersect
Specific controlling Supreme Court opinions directly addressing when an individual service member must disobey are sparse in the provided sources; much of the doctrine arises from military appellate decisions (CAAF and service CCAs), the UCMJ, and manuals. The CAAF is the highest military appellate court and binds service courts; databases and opinion digests collect those decisions, but readers should consult actual CAAF opinions for precise tests and examples [9] [10] [11]. Available sources do not list a single Supreme Court case that sets a modern bright‑line test for individual disobedience; instead, military law and CAAF precedent supply the governing standards [11] [3].
4. Contemporary flashpoint: domestic deployments and presidential orders
Federal litigation over domestic troop deployments (Posse Comitatus and Insurrection Act disputes) has created a live controversy about whether orders to put military forces into U.S. cities are lawful and when troops must refuse them. Recent federal judges have blocked deployments in some cities (example: a September 2025 Los Angeles ruling cited in commentary), and appellate splits on domestic deployments mean competing legal signals for troops and commanders [12] [13]. The Department of Defense and its lawyers conduct legal reviews but do not themselves have absolute power to prevent commanders from acting; experts warn the review process and chain‑of‑command pressures complicate real‑time refusals [5].
5. Tension introduced by recent Supreme Court and policy developments
Commentators note a 2024 Supreme Court decision on presidential immunity has complicated the landscape: some write that extending immunity for presidential acts blurs the line between an unlawful order and a president’s protected “official act,” potentially making a soldier’s decision to refuse less clear [4]. Other analysts (and amici briefs cited to the Court) insist military law still requires refusal of orders to commit crimes (for example, murder), invoking Article 92 and longstanding principles that superior orders do not excuse criminal conduct [14] [15].
6. Practical guidance and competing viewpoints
Legal practice sites and defense attorneys emphasize caution: service members who doubt lawfulness should seek legal advice up the chain and understand that refusing a lawful order carries severe penalties (courts‑martial, administrative consequences) whereas blindly following an unlawful criminal order carries legal jeopardy as well [6] [16] [1]. Political actors and commentators are split: some urge active refusal in face of perceived unconstitutional orders (as public lawmakers recently did), while others warn that asking troops to “judge” constitutionality risks undermining discipline and placing individual members in peril [17] [18].
7. Bottom line and limits of this summary
The sources agree on the central rule: disobey manifestly unlawful orders; the hard part is determining “manifest” in real time. Military manuals and CAAF/service‑court precedent supply the operative tests; recent federal litigation over domestic deployments and a Supreme Court decision on presidential immunity have created contested terrain and practical uncertainty [2] [3] [4]. Available sources do not provide a single Supreme Court decision that creates a comprehensive modern test for individual service‑member refusal; readers needing case citations for litigation or self‑defense should consult CAAF and service court opinions and seek counsel [11] [10].