Streetwise Professor

Even in our degraded, hyperpartisan political culture I cannot recall seeing anything as outrageous and repulsive as this:

We want to speak directly to members of the Military and the Intelligence Community.

The American people need you to stand up for our laws and our Constitution.

Don’t give up the ship. pic.twitter.com/N8lW0EpQ7r

— Sen. Elissa Slotkin (@SenatorSlotkin) November 18, 2025

This is an outright call for disobedience–indeed, mutiny–made by representatives and senators who apparently believe their prior service grants them the authority to do so. The irresponsibility and hubris is off the charts.

A military can function only with strict obedience. Presumably these people believed that when they were in the military. (Though maybe they only believed that their subordinates had to obey them, not that they had to obey their superiors. I can see that).

They probably believe it now–it’s just that they are willing to jettison those beliefs in order to obstruct the policy of the duly elected commander in chief. That is, purely unprincipled partisan opportunism wrapped in a Constitutional gauze.

There is so much wrong with this. But two things stand out.

The first is the insinuation that domestic deployment of the military “against US citizens” is illegal and unconstitutional. This is false. The president has the authority to do so under certain conditions that are broadly subject to his judgment as to whether the conditions apply.

Many idiots say “but but but the Posse Comitatus Act!!!” False. The Act confers the power to deploy the military domestically on the president, and the president alone. Prior to the passage of the Act, local officials (e.g., US marshals) could employ military personnel and units as part of a posse.

Which leads to the second major problem, which is indeed the more serious in my mind. These legislators are conveying the impression that it is totally OK for a member of the armed services to make a judgment of their own whether the president is lawfully exercising his authority to deploy the military “against US citizens.”

In fact, it’s an open question as to whether even the courts have the power to make that judgment. But it is clearly outside the ken of any private, seaman, or airman–and indeed, any general or admiral–to make it.

But these . . . people . . . [channeling Robert E. Lee there] are suggesting that this is totally OK, and indeed, a duty. And the danger is that some kid will believe them, disobey orders, and end up breaking rocks in Leavenworth.

The UCMJ makes things crystal clear. Article 90: “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the subordinate’s peril. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” These people are encouraging individuals, many who might be quite naive and believe they are doing the right thing, to put themselves in peril by challenging orders that are anything but patently illegal.

The illegality of an order is a defense against a charge of disobedience. It is also a defense that is almost certain to fail in cases other than, say, an order to rob a bank.

The main protection offered by the concept of illegal order is to those who obey, not those who disobey. Unless “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful,” he cannot be found guilty at a court martial for obeying it. It is to protect subordinates from the illegal actions of superiors, not to give subordinates the power to challenge their superiors.

But no doubt if anyone follows the siren call of these . . . people . . . and gets sentenced to hard time, said . . . people . . . will say: “You fucked up! You trusted us!”

It brings to mind Civil War Congressman Clement Vallandingham, who along with others encouraged Union troops to desert. Lincoln lamented: “”Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?” (Vallandingham was convicted by a military court and sentenced to prison for the duration of the Rebellion. Lincoln eventually commutated his sentence to banishment to the Confederacy).

And it goes without saying that our latter day wily agitators threaten the good order and discipline of the military by raising doubts about whether orders must be obeyed, and who has the right to make that determination. That’s no way to run an army, navy, air force, or marines.

Is there anywhere we can banish these people? Which fate would be in fact quite generous given what they really deserve.