Constitution , Executive order & the army's obligation

On what grounds does the army have the right , if any , to refuse an order from the President ?
I would think that the generals take the same oath to uphold the constitution as elected officials and that oath would supersede any order given by a president or anyone else for that matter ?
In the long history of the United States of America has the army ever refused an order because it was seen as an unlawful order ?
Can an executive order , under any circumstance , supersede the oath to up hold the constitution ?

[edit on 28-9-2008 by Max_TO]

Here is a link to the USA constitution , something that we should all be looking at during this time in our history . www.constitution.org...

reply to post by Max_TO


Well, since the Constitution states that the President is the C-I-C, part of obeying and defending the Constitution would be to obey the orders of the President and the officers appointed over the service member.

reply to post by RealityisanIllusion


So that would mean that any order given by the President , because he is CIC makes it legal ? Even if it is by definition " unconstitutional " ?
If thats true then what is the point to having a constitution , if that was the case you would simply need a CIC , no ?

the only orders the military can refuse are orders that violate the constitution and or the UCMJ (Uniformed Code of Military Justice).

But members of the military have to be careful if they refuse an order because they can be charged with mutiny and that is punishable with death. If a court marshal finds that the orders were valid.

[edit on 9/28/2008 by Mercenary2007]

reply to post by Max_TO


Also, the Oath of the President is to uphold the Constitution. When the President violates the Constituion, said Constitution provides for impeachment. Executive Orders are for times of crisis, which would be now. If an executive order is excessively violates the Constitution, that's when the Legislative Branch is supposed to intercede.

By the way, a service member's oath has no time constraints and pretty much is never ending once it has been taken. So, the talk of revolution by the many former service members can be construed as "advocating the overthrow of the United States Government". People should be more careful what they are willing to put on a forum that can be read by anybody on the planet.

Here are two interesting links , 1. www.buddylogan.com... Talks about Executive Orders and 2. www.archives.gov... a link to the Executive orders signed by President George W. Bush

However it is the opinion of the one site that an executive order has no constitutional authority . " Executive orders have been used by presidents since 1789, even though there is no constitutional provision or statute allowing it. "

I would like some one who is more knowlagable then I to take a peek at the first link then report back as to the validity of there claims .

[edit on 28-9-2008 by Max_TO]

reply to post by Max_TO


Reading through the info provided in the first link, it came to mind that a President can rescind an executive order issued by a previous President. Keeping that in mind, if any president thought that the issuance of an executive order in the past was not legal or not needed, it can be rescinded or revoked. Here is a site that gives a great deal of info on executive orders.
uspolitics.about.com...

reply to post by Mercenary2007


Thank you for your post . I was troubled by one thing you had mentioned though , " they have to be careful " . That statement causes some alarm to me . If they , the army , understand there oath then what is there to be careful about ? That they might be killed if they stand by there oath ? I am not trying to split hairs here but I am trying to understand how this can be in a free country based on laws . There should not be any need to be careful if they are right . The constitution , as far as I know , is written in pretty clear terms .

reply to post by RealityisanIllusion


Thanks for posting the link I will take a look , at first glance there seems to be quit a bit of info .

First, here is the US Armed Forces Oath of Enlistment:

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Source

Here is the relevant article in the Uniform Code of Military Justice (UCMJ):

ART. 90. ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER
Any person subject to this chapter who--

(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his officer; or

(2) willfully disobeys a lawful command of his superior commissioned officer;

shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

Uniform Code of Military Justice (UCMJ)

Now, the two key phrases to note are "defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same" and "willfully disobeys a lawful command". This very same scenario was brought up by one of my shipmates while going through basic training for the Navy. It was a class that was being instructed by a JAG officer (Judge Advocate General), and he told us that NO ONE, including the President of the United States, can give an order that violates the Constitution, and if such an order is given, it is the duty of a member of the Armed Forces to not follow such an order. Defense of the Constitution is the primary mandate of members of the Armed Forces, above all else. If the President were to issue such an order, he or she would be in violation of the Constitution, and as such qualify as a domestic enemy of said document, as he or she would be in violation of Article II, section 1:

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Which would be considered treason and would be subject to:

Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

U.S. Constitution

Given that, as a veteran, I can assure you that while some will blindly follow orders, most members of the Armed Forces, especially Officers, would not follow orders that violated the Constitution. If this were tried, it would cause great disharmony, and cripple the ability of the military to function.

[edit on 28-9-2008 by JaxonRoberts]

reply to post by JaxonRoberts


Great post .
It is my fear that given the right situation or act that the hole mater of following ones oath becomes such a grey area that many simply follow blindly along thinking the hole time that they are doing the right thing when in fact they are hammering the nail in the coffin of the constitution that they have given there word to uphold . Given the state of things in the world today it doesn't seem to far fetched , IMHO .

reply to post by Max_TO

it's all in the interpretation of the various codes of the UCMJ. If a service member refuses to follow orders of a superior officer because he believes it violates the law or he feels it is immoral. he will still be charged with failure to follow orders.

Then the military legal process starts. to determine if the service member was within his rights or not.

the moral of this is they have to be careful in refusing to follow orders and make sure the law is on their side.

I could look at a law and come to one conclusion, you could look at the same law and come to something completely different. again its all interpretation of the law and if the sevice member was right to not follow the order

Hope that helps but i might have confussed you sorry if i did

reply to post by Mercenary2007


Thank you for the info I appreciate you taking the time to answer .
I would strongly hope that no member of the army would ever follow an order blindly .
But when I look to todays world and political situation I cant help be see certain possibilities in which the constitution could be set aside for the sake of a so called necessity in restore order . In my mind , the further away from the constitution we get we will come to face a much graver state of affairs then anything that a terrorist or financial institution could ever bring forth .

I would like to believe that the US army will always be there , regardless of any political leader , to enforce the constitution and the rights of the people .

[edit on 28-9-2008 by Max_TO]

Forgive me for just popping in here with this, but I think that one should look to the period of the Civil War if they are truly interested in knowing the answers behind this, and how it all goes down. In a nutshell though, the Confederacy seceded for what they saw as a violation of the Constitution.

Illegitimate Federal Government and the Rule of Martial Law in the United States

reply to post by JaxonRoberts


Hard to tell these days though, what actually violates the Constitution. Like bag searches on subways without a warrant for example, but there are so many. You would have to be a lawyer, or even a Supreme Court Justice these days to figure out what is or is not "constitutional."

reply to post by jackinthebox


In the example you gave, there is no Constitutional violation. There are signs on almost all public transportation that warns you that you are subject to a search. If you do not wish to be searched, you don't take that form of public transportation. In fact, illegal search and seizure really only applies to private property, not public.

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

[The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If you check with the Transit Authority, I will bet they have a Court Order allowing them to conduct said searches. It will also be listed on the signs warning you as you enter. The probable cause is public safety.

[edit on 28-9-2008 by JaxonRoberts]

reply to post by JaxonRoberts

The probable cause is public safety.

Hmm, yes, so I see.

So a court order does an end-run, once again, around the Constitution.

Being "subject to search" is not a warrant against your particular person and affects, nor is it in the spirit of the Constitution. Why not just have a court order syaing the police can do whatever they want, whenever they want?

And I think you missed the word "public" in public transportation.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You can also see here that even with probable cause, you still need a warrant.

reply to post by Max_TO


Your welcome glad i could put in a light that was easily understood.

Like you i hope they don't blindly follow orders and question why they are being ordered to do something that is illegal or immoral. But i highly doubt the drill Sergeants are telling them in basic that there are orders they can refuse. I only hope that we are ever in a situation where our military is used against us and they are forced to choose between right and wrong.