Supreme Court Justice Sonia Sotomayor may be an expert on constitutional law, but she apparently has no idea about a key limit on executive power: the U.S. military.
In a dissenting opinion to the Supreme Court ruling of July 1,Trump vs. the United StatesSotomayor presented a hypothetical scenario regarding presidential immunity, specifically warning that the decision means the commander in chief can order U.S. forces to kill the enemy and then avoid criminal prosecution.
She wrote:[The president] “Order Navy SEAL Unit 6 to assassinate a political opponent? With impunity. Plot a military coup to maintain power? With impunity.”
Someone needs to explain to her that that’s not the case.
“In all exercises of public power, the president is now a king above the law,” Sotomayor wrote, and sees the ease with which he could execute opponents. But where are the willing executioners?
I served as an Army officer for over 20 years and can say with certainty that they are not in uniform. Our military is made up of intelligent, principled citizens who understand their obligation to follow only lawful orders. Orders to assassinate American citizens are not lawful. In fact, they are an impeachable offense.
Each military member takes an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” In addition, enlistees swear to “obey the orders of the President of the United States and other officers in accordance with the rules and regulations.” Uniform Code of Military Justice.”
The Uniform Code of Military Justice was enacted by Congress, which exercises constitutional authority to raise and maintain an armed force, maintain a navy, and establish rules and regulations for those forces. Thus, U.S. military personnel undergo legal and ethical training to carry out the directives of Congress, which are codified, implemented, and enforced by the Commander in Chief and the Judge Advocate General. This is very serious. The U.S. government gives the military the permission to kill, and the means to do so on their behalf, but it places strict and meaningful constraints on that authority.
Beyond these legal limitations, another reason why Sotomayor’s argument is nonsense is the diverse makeup of our military. It is made up of members from all social, ethnic and political walks of life. There is no common military view on domestic politics. Studies have shown that the military does not primarily support one political party or the other.
So if the president issues illegal orders for murder or a coup, the military will not easily comply. As I have written before, it is ludicrous to think that members of the military can agree to take an illegal course of action, mobilize sympathetic military members from various branches and locations to provide illegal combat or service support, and then hide the planning and execution of these criminal schemes from other military forces, civilian law enforcement personnel, their families, and neighbors.
If a coup plot was underway, it could not remain secret and, once exposed, the plotters would be quickly caught.
A lawless president who “fires” generals to force obedience would only be able to provide Congress with the precise evidence necessary for impeachment. Our lawmakers maintain strong and direct ties to the military, funding and oversight of it.
The idea that a hypothetical assassin would be protected by a presidential pardon is also nonsense. Any top official who would dare order such a killing and then release the assassin would be impeached and removed from office. Sotomayor’s dire scenario reads more like a bad movie script than a realistic assessment of American political dynamics.
Our military is not a triggerman for tyrants, but a bulwark of democracy. In these difficult times when trust between people and their government is frayed, The majority of Americans continue Express “Great” or “considerable” confidence in the U.S. military. Sotomayor’s misinformed Hail Mary dissent was inappropriate and undermined this confidence. It ignored the principled conduct of our military and inaccurately politicized its members.
Sotomayor fears for our democracy, but we should believe that the real threat to our country lies elsewhere.
Elizabeth Robbins is a retired Army officer and vice president for public affairs at the Foundation for Defense of Democracies, a nonpartisan research institute specializing in national security and foreign policy.
