Federal Employees Are Under No Obligation To Carry Out An Illegal Order
By George Rasley, CHQ Editor
Gallons of ink have already been spilled on the pages of America’s newspapers by scholars and lawyers explaining that President Obama does not have all or key elements of the authority he claims to have to grant amnesty to millions of illegal aliens.
And gallons more have been spilled explaining the details of how such an illegal and unconstitutional amnesty would work and the steps Congress might take to defund it.
But what no one seems to have recognized is that it takes people – federal employees, sworn law enforcement agents, and maybe even some military personnel – to accomplish Obama’s illegal goals.
Someone has to let the illegal aliens out of jail, issue the documents, mail the green cards and do all the hundreds of other tasks necessary to carry out Obama’s illegal and unconstitutional scheme. And each of those individuals took an oath to protect and defend the Constitution of the United States, not blindly follow a president’s orders.
And there’s a good bit of evidence that federal employees, sworn law enforcement agents and military officers can not only refuse an illegal order, but if they don’t they accrue personal criminal or civil liability.
American military law and tradition holds that military members are accountable for their actions even while following orders — if the order was illegal. So, an order that is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it.
U.S. military law has long held that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).*
So, U.S. military personnel are authorized by their oath of enlistment and training to refuse unlawful orders, indeed, officers are actually authorized to arrest those who issue unlawful orders, unlikely as it is that President Obama’s military aide will attempt to arrest him.
Likewise, various agencies of the federal government have rules and regulations regarding illegal orders. Such rules tend to follow a formula such as this from a USDA ethics briefing; “USDA Employees must follow supervisory instructions unless the employee perceives that they are illegal or would threaten his or her personal safety. Supervisory instructions have to be legitimate and work-related not arbitrary or capricious.”
Naturally, federal employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate.
Employees caught in this ordered-to-do-wrong bind are generally advised to adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).