Supreme Court Justice Sonia Sotomayor may be a constitutional law expert, but she apparently is unaware of a key limitation on executive power: our American troops.
In her dissent to the Supreme Court’s July 1 ruling in Trump v. United States, Sotomayor raised a hypothetical scenario regarding presidential immunity. Specifically, she warned that the decision meant that a commander-in-chief could order U.S. troops to murder an opponent, then sidestep criminal prosecution.
She wrote: “[The president] orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune.”
Someone needs to explain to her that’s not how it works.
Sotomayor wrote, “In every use of official power, the president is now a king above the law” who in her view can simply execute opponents. But where are the willing executioners?
I served for more than 20 years as an Army officer. I can tell you that they are not in uniform. Our armed forces are comprised of bright and principled fellow citizens who understand their duty to follow only lawful orders. An assassination order against an American citizen would not be lawful — in fact, it would be an impeachable offense.
Each service member swears an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Further, enlistees vow to “obey the orders of the president of the United States” and other officers “according to regulations and the Uniform Code of Military Justice.”
The Uniform Code of Military Justice was established by Congress under its Constitutional powers to raise and support armies, provide and maintain a navy, and establish rules and regulations for these forces. Accordingly, U.S. service members receive legal and ethical training to fulfill Congress’s directives as codified and implemented and enforced by commanders and the Judge Advocate General’s Corps. This is deadly serious — the U.S. government provides its military a license to kill and the means to do so on its behalf, but with deep and meaningful constraints upon that power.
Beyond these legal boundaries, another reason that Sotomayor’s contention is nonsense is the diverse composition of our military. The ranks are filled with individuals from across the social, ethnic and political spectrum. No common military perspective exists on domestic politics. Multiple studies reveal that the troops do not predominantly support one party or another.
Accordingly, if a president were to give an illegal order to murder or enact a coup, the troops would not simply fall into line. As I have written previously, it is laughable to think that service members could agree on taking an unlawful course of action; mobilize sympathetic service members across various branches and locations to provide illicit combat and service support; and keep the planning and execution of these criminal schemes from other troops, civilian law enforcement personnel, their families and their neighbors.
If a coup plot were brewing, it would not remain a secret — and once revealed, the plotters would be swiftly caught.
A rogue president who “fires” generals in an attempt to compel compliance would only succeed in providing Congress the exact evidence needed to impeach. Our legislators enjoy strong and direct ties with the military, which they fund and oversee.
The idea that hypothetical assassins would be shielded by presidential pardons is also nonsense. A chief executive who boldly orders such killings and then frees the assassins would be impeached and removed from office. Sotomayor’s tortured scenario reads more like a bad movie script than a realistic appraisal of the American political dynamic.
Our troops are not trigger-men for a tyrant, but the bulwark of democracy. In these difficult times, when trust is strained between citizens and their government, the majority of Americans continue to express “a great deal” or “quite a lot” of confidence in the U.S. military. Sotomayor’s misinformed Hail Mary of a dissent was inappropriate and harmful to this trust. It ignored the principled behavior of our military and inaccurately politicized its members.
Sotomayor fears for our democracy, but she should look elsewhere for true threats to our republic.
Elizabeth Robbins, a retired Army officer, is vice president for communications at Foundation for Defense of Democracies, a nonpartisan research institute focusing on national security and foreign policy.
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