The Good Officer: President Trump, General Milley, and the “Necessity” of Constitutional Fidelity

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance.

Publication Details

Journal
eYLS (Yale Law School)
Published
2024-11-19
Primary Topic
Law, Rights, and Freedoms
Type
article
Field-Weighted Citation Impact
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article

The Good Officer: President Trump, General Milley, and the “Necessity” of Constitutional Fidelity

eYLS (Yale Law School)
Law, Rights, and Freedoms
article

The Good Officer: President Trump, General Milley, and the “Necessity” of Constitutional Fidelity

article en

Abstract

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance.

eYLS (Yale Law School)
Peace, Justice and strong institutions
Openalex Percentile: Top 32%
Law, Rights, and Freedoms
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The Good Officer: President Trump, General Milley, and the “Necessity” of Constitutional Fidelity · eYLS (Yale Law School) (2024) | TGRS Research Map | TGRS