December 4, 2025
By Ivan Eland
The Trump administration recently threatened to return retired Navy captain, former astronaut, and now Senator Mark Kelly to active duty and court-martial him—along with investigating other veterans in Congress—merely for publicly advising members of the military to honor their oath to defend the Constitution and refuse to obey illegal orders (presumably from President Donald Trump, the commander in chief of the U.S. armed forces).
Of course, Trump’s threats are outrageous but unsurprising. He has said he wants to terminatethe Constitution. He has also said that Article II, which defines the presidency, allows him to do whatever he wants.
More than the flag, the national anthem, the pledge of allegiance, and the Declaration of Independence, the Constitution provides the pillars for the preservation of the American republic. That’s why the military Oath of Enlistment pledges allegiance to the Constitution rather than to a person or branch of government. In short, the phrase “America is ruled by laws, not men” best sums up American society and government.
Trump assumes he can order the military to do his bidding, and that is why those veterans in Congress reminded military personnel that they owe allegiance to the Constitution.
Trump’s threat to court-martial Kelly is not only a threat to the senator but also to any service member who thinks that one of Trump’s questionable orders might be illegal. There have been many of those, both in Trump’s first term and now accelerating in his second.
During the first term, Trump used the military to assassinate Qasem Soleimani, effectively the second-ranking leader in Iran, without authorization from Congress. This could have sparked a war had it not been for Iran’s restrained and telegraphed retaliatory attack on a U.S. base in the Middle East. Trump also waged war on ISIS in Syria and Iraq, continuing the illegal war begun by President Barack Obama. That war stretched the post-9/11 congressional Authorization of the Use of Military Force (AUMF), which only allowed action against those who perpetrated those attacks (al-Qaeda in Afghanistan and Pakistan) and those who harbored them (the Afghan Taliban), into a war against ISIS and other groups that had nothing to do with 9/11. Obama had followed President George W. Bush, who had stretched the 2001 AUMF into a worldwide war against terrorist groups “of global reach,” not all of which was focused on attacking U.S. targets.
In his second term, Trump has been targeting small boats allegedly carrying drugs far from the United States in the Southern Caribbean and Eastern Pacific. Previously, such boats were stopped by the Coast Guard, and if drugs were found, the traffickers were put into law-enforcement channels for criminal trials. Since drug trafficking is not punishable by death, the killing of 83 people so far without due process or a congressional declaration of war is illegal.
But the worst illegal orders Trump has given, and those most injurious to the Constitution, have sent troops or National Guard forces into U.S. cities in the absence of an insurrection or requests by the states affected. So far, the courts have bluntly ruled that such deployments to Los Angeles and Washington, D.C. are illegal.
None of Trump’s illegal uses of the military—or for that matter, those of Bush, Obama, or other past presidents—have led to mass resignations of or even significant protests by service personnel to military lawyers (who have conveniently been winnowed and neutered by Trump). This compliance by officers and enlisted personnel is understandable, given the severe career and legal penalties for insubordination. Moreover, Congress has let presidents get away with illegal unilateral military attacks at least since the Civil War. Congress should start doing its job.
The Constitution’s framers clearly gave the power to initiate war to Congress, the people’s House and Senate, in reaction to Europe’s monarchs, who unilaterally took their countries to war for personal aggrandizement, with the costs borne by the common people through combat deaths, destruction of property, and high taxes. Thus, the framers intended Congress to be asked to approve military actions in advance, except for an emergency response to an attack. Yet even after America was attacked on 9/11 and by the Japanese at Pearl Harbor in 1941, Congress was asked to approve retaliatory military action.
Thus, if Trump continues to take clearly illegal unilateral military actions in far less dire circumstances—by striking alleged drug-trafficking boats, attacking Venezuela to try to topple its leader for alleged trafficking without congressional approval, or sending troops to more American cities under trumped-up pretexts—perhaps groups of rank-and-file military members will express their unhappiness to their immediate commanders. Congressional and media reaction to Secretary of Defense Pete Hegseth’s seemingly illegal order to kill all people on those small boats, even survivors in the water, should make military people realize that they don’t possess the immunity that Trump does from being held responsible for being involved in carrying out illegal orders or war crimes. Furthermore, the brouhaha over Hegseth’s apparent lawless behavior and the warning by Kelly and others may put a bug in military ears about the right path to take if a full-blown constitutional crisis arises—that is, to refuse illegal orders, no matter who gives them.
By Ivan Eland
The Trump administration recently threatened to return retired Navy captain, former astronaut, and now Senator Mark Kelly to active duty and court-martial him—along with investigating other veterans in Congress—merely for publicly advising members of the military to honor their oath to defend the Constitution and refuse to obey illegal orders (presumably from President Donald Trump, the commander in chief of the U.S. armed forces).
Of course, Trump’s threats are outrageous but unsurprising. He has said he wants to terminatethe Constitution. He has also said that Article II, which defines the presidency, allows him to do whatever he wants.
More than the flag, the national anthem, the pledge of allegiance, and the Declaration of Independence, the Constitution provides the pillars for the preservation of the American republic. That’s why the military Oath of Enlistment pledges allegiance to the Constitution rather than to a person or branch of government. In short, the phrase “America is ruled by laws, not men” best sums up American society and government.
Trump assumes he can order the military to do his bidding, and that is why those veterans in Congress reminded military personnel that they owe allegiance to the Constitution.
Trump’s threat to court-martial Kelly is not only a threat to the senator but also to any service member who thinks that one of Trump’s questionable orders might be illegal. There have been many of those, both in Trump’s first term and now accelerating in his second.
During the first term, Trump used the military to assassinate Qasem Soleimani, effectively the second-ranking leader in Iran, without authorization from Congress. This could have sparked a war had it not been for Iran’s restrained and telegraphed retaliatory attack on a U.S. base in the Middle East. Trump also waged war on ISIS in Syria and Iraq, continuing the illegal war begun by President Barack Obama. That war stretched the post-9/11 congressional Authorization of the Use of Military Force (AUMF), which only allowed action against those who perpetrated those attacks (al-Qaeda in Afghanistan and Pakistan) and those who harbored them (the Afghan Taliban), into a war against ISIS and other groups that had nothing to do with 9/11. Obama had followed President George W. Bush, who had stretched the 2001 AUMF into a worldwide war against terrorist groups “of global reach,” not all of which was focused on attacking U.S. targets.
In his second term, Trump has been targeting small boats allegedly carrying drugs far from the United States in the Southern Caribbean and Eastern Pacific. Previously, such boats were stopped by the Coast Guard, and if drugs were found, the traffickers were put into law-enforcement channels for criminal trials. Since drug trafficking is not punishable by death, the killing of 83 people so far without due process or a congressional declaration of war is illegal.
But the worst illegal orders Trump has given, and those most injurious to the Constitution, have sent troops or National Guard forces into U.S. cities in the absence of an insurrection or requests by the states affected. So far, the courts have bluntly ruled that such deployments to Los Angeles and Washington, D.C. are illegal.
None of Trump’s illegal uses of the military—or for that matter, those of Bush, Obama, or other past presidents—have led to mass resignations of or even significant protests by service personnel to military lawyers (who have conveniently been winnowed and neutered by Trump). This compliance by officers and enlisted personnel is understandable, given the severe career and legal penalties for insubordination. Moreover, Congress has let presidents get away with illegal unilateral military attacks at least since the Civil War. Congress should start doing its job.
The Constitution’s framers clearly gave the power to initiate war to Congress, the people’s House and Senate, in reaction to Europe’s monarchs, who unilaterally took their countries to war for personal aggrandizement, with the costs borne by the common people through combat deaths, destruction of property, and high taxes. Thus, the framers intended Congress to be asked to approve military actions in advance, except for an emergency response to an attack. Yet even after America was attacked on 9/11 and by the Japanese at Pearl Harbor in 1941, Congress was asked to approve retaliatory military action.
Thus, if Trump continues to take clearly illegal unilateral military actions in far less dire circumstances—by striking alleged drug-trafficking boats, attacking Venezuela to try to topple its leader for alleged trafficking without congressional approval, or sending troops to more American cities under trumped-up pretexts—perhaps groups of rank-and-file military members will express their unhappiness to their immediate commanders. Congressional and media reaction to Secretary of Defense Pete Hegseth’s seemingly illegal order to kill all people on those small boats, even survivors in the water, should make military people realize that they don’t possess the immunity that Trump does from being held responsible for being involved in carrying out illegal orders or war crimes. Furthermore, the brouhaha over Hegseth’s apparent lawless behavior and the warning by Kelly and others may put a bug in military ears about the right path to take if a full-blown constitutional crisis arises—that is, to refuse illegal orders, no matter who gives them.
This article was published at Independent Institute
Ivan Eland
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
Ivan Eland
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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