The New 92? Lawful Orders, the Obedience Paradigm, and the Military as a Forum for Experimental Change in the Aftermath of Trump v. United States

Article 92 of the Uniform Code of Military Justice criminalizes defiance of lawful orders issued by superior military and civilian officials in a service member’s chain of command, while Rule for Court-Martial (R.C.M.) 916(d) provides procedural guidance for the assertion that a service member was acting pursuant to lawful orders as a criminal defense. These provisions are integral to maintaining good order and discipline within the military ranks and ensuring consistent and reliable implementation of operational and policy initiatives across the Department of Defense. The duty to obey lawful orders is closely circumscribed in the context of the military chain of command but may contain additional ambiguity when the order’s originator is a senior civilian official, such as the Secretary of Defense or the President of the United States. In an era of rapidly-reconstituting political norms, recent senior civilian directives to the military have frequently departed from established processes as the institution is used to facilitate social policy decisions absent the formal executive or legislative guidance or judicial mandate that have historically accompanied such shifts as applied to the Department of Defense. This Article explores the regulatory and punitive environments in which these orders are issued, as well as the obedience paradigm that governs compliance with executive directives by service members at all levels of the military chain of command. It specifically examines implications for the Article 92/ R.C.M. 916(d) “obedience paradigm” in light of the Supreme Court’s July 2024 ruling in Trump v. United States, an unprecedentedly broad grant of executive immunity for official presidential acts. The Article subsequently details several seminal moments in the history of the military’s role as a forum for the enactment of controversial, often highly-partisan, policies in the areas of race, gender, and sexual orientation, as well as their catalysts – both populist and judicial – to provide context for analysis of a potential reevaluation of Article 92/ R.C.M. 916(d). Finally, it investigates whether alteration of the contemporary framework governing compliance with lawful orders is warranted, given the shifting contemporary normative dimensions of military policy guidance issued by senior civilian officials in the Department of Defense, and proposes some reforms to the existing paradigm to ensure the maintenance of good order and discipline within the military ecosystem and the preservation of Constitutional values and ethical policymaking writ large.