Some Democrats Urge the Military To 'Refuse Illegal Orders.' What if the IRS, ATF, and EPA Did the Same?
Much of what the federal government does on a daily basis flouts constitutional protections and offends human decency.
I favor government employees defying orders and sabotaging the instruments of the state as much as the next libertarian (well, maybe a little more). But I suspect the Democratic lawmakers urging members of the military and the intelligence community to "refuse illegal orders" haven't entirely thought through their positions. While their advice is commendable so far as it goes, as officials of a political party known for its expansive view of the role of government their words are likely to come back and bite them on their collective asses. It's hard to imagine them being so enthusiastic about a reboot of this message directed at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Environmental Protection Agency (EPA), and IRS agents under a Democratic administration.
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Lawmakers Say: Refuse Illegal Orders
In a video message released this week, Democratic Sens. Elissa Slotkin of Michigan and Mark Kelly of Arizona, and Reps. Chris Deluzio of Pennsylvania, Maggie Goodlander of New Hampshire, Chrissy Houlahan of Pennsylvania, and Jason Crow of Colorado, introduce themselves with emphasis on their past roles in the military and intelligence agencies.
"We want to speak directly to members of the military and the intelligence community," they say. "We know you are under enormous stress and pressure right now. Americans trust their military, but that trust is at risk. This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. And right now, the threats to our Constitution aren't just coming from abroad, but from right here at home."
That's a nice lead-in. Then we get to the heart of the message: "Our laws are clear. You can refuse illegal orders. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution."
Stirring stuff. And accurate. Referencing a Vietnam War-era atrocity, retired General Philip M. Breedlove, former Supreme Allied Commander in Europe, told NewsNation regarding the video, "Since My Lai, the way we have interpreted this is, as a combatant, as a military officer, you are not obligated, not obligated, to carry out an illegal or an immoral order. You simply refuse the order."
Much of What the Government Does is Illegal or Immoral
But Breedlove added that he hasn't seen any recent illegal orders that would justify the video. That said, whether orders are illegal or immoral is often a matter of interpretation. Chelsea Manning's case provides an instructive example: Manning spent years in prison, in part for releasing video of U.S. troops firing on Iraqi civilians in an incident that shocked the consciences of many people. Former President Barack Obama ran up a civilian death toll in the hundreds, including four U.S. citizens, with drone strikes that horrified observers. And, if the Democratic lawmakers in that video are concerned about the legality and morality of the brewing conflict with Venezuela (and they should be), they should acknowledge that Obama himself called the aftermath of his administration's intervention in Libya the "worst mistake" of his presidency.
So, if we grant that judgment necessarily plays a role in assessing the legality, constitutionality, and morality of government actions, we must acknowledge that a lot of what the government does is legally dubious at best. That includes many programs favored by Democrats.
Firearms laws are a good example. Kelly, for example, rose to prominence largely on the issue of gun control after his wife, former Rep. Gabby Giffords (D–Ariz.), was shot in 2011. But the restrictions he favors run up against the Constitution's protections for private ownership of arms.
"A plain reading of the Second Amendment ought to be enough to stop nearly all federal gun laws," the Heartland Institute's Justin Haskins pointed out in 2021. "But over the past century, courts and scholars have watered down the Bill of Rights with convoluted arguments that contradict the overwhelming historical evidence available today."
By contrast, the income tax isn't unconstitutional; it was specifically authorized by the 16th Amendment. But it is intrusive and subject to political weaponization. Even when not political its enforcement is often abusive. And the tax is arguably immoral.
"To rigorously enforce an income tax on personal, business, and corporate income, government has to invade the privacy of every income-earning individual in the land," argued Byron Schlomach, director of Oklahoma's now-defunct 1889 Institute, in 2021. "Government gets to know how many children we have, how much we use a vehicle for business purposes, what vendors we use if we own a business, and how we divide the use of our house if we have a home office." Ultimately, he concluded, the income tax is "just plain evil."
Even when laws and government activities don't run afoul of specific protections for liberty or of moral sensibilities, they're often not authorized by the Constitution which grants the federal government only limited areas of responsibility.
"The vast majority of functions carried out by the Department of Education are not authorized by the Constitution," Thomas A. Berry, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, wrote in March. "That is because the Constitution grants the federal government only limited, enumerated powers, none of which encompass education policy."
The same could be said of so many other things the government does, from expansive regulation to so-called "entitlement" programs. They're activities in which government officials engage without any authorization from the Constitution, making them unconstitutional.
Take Advice to Refuse Illegal Orders Seriously, and Apply It Universally
So, if we're to take seriously—and I believe we are well-advised to do so—the six Democratic lawmakers' advice that "no one has to carry out orders that violate the law or our Constitution," there are interesting implications for our political culture. That's because much of what the federal government does on a daily basis flouts constitutional protections and offends human decency.
So, how would Slotkin and Kelly, and Deluzio, Goodlander, Houlahan, and Crow, respond to campaign a few years from now under the next Democratic administration urging ATF and IRS agents, federal regulators, and general workers to refuse orders? How would they treat an attempt to recruit more whistleblowers like Manning and Edward Snowden?
Don't get me wrong, I think the advice the lawmakers offer is praiseworthy. But I look forward to seeing it applied universally and becoming a permanent feature of our dealings with government. I suspect that likelihood hasn't occurred to those six legislators, but thanks to them for showing the way.
