Amicus curiae argues that Senator Kelly’s statement, far from promoting disobedience in the military, reminds service members of their constitutional obligations. Moreover, free speech protections apply to the veteran lawmaker
Philadelphia, PA – The University of Pennsylvania’s Center for Ethics and the Rule of Law (CERL) has filed an amicus brief with the U.S. Court of Appeals for the District of Columbia Circuit in the case Kelly v. Hegseth, urging the Court to uphold a lower court’s decision blocking Secretary of Defense Pete Hegseth from punishing Senator Mark Kelly (D-AZ), a retired Navy captain, for his statements in a video he and five other Democratic lawmakers released in which they said service members can disobey unlawful orders.
“The attempt to discipline Senator Kelly on the part of the Trump administration reflects not only a concerning lack of understanding of the law concerning superior orders, but a lack of respect for the boundaries of open discourse in a democratic society and the role of the executive branch relative to members of a co-equal branch of the federal government,” said Professor Claire Finkelstein, faculty director of CERL and law professor at Penn.
“This case is the most egregious use of military jurisdiction in the history of the United States,” said Professor Brenner Fissell, distinguished senior fellow at CERL and law professor at Villanova. “We urge the D.C. Circuit to affirm that military law may not be used pretextually to undermine the separation of powers.”
The brief asserts that Senator Kelly wrongly faces discipline for speech that “accurately reflects the law of superior orders.” Secretary Hegseth alleged in a January 2026 Secretarial Letter of Censure that the retired Navy captain had “counseled disobedience” to lawful orders when, in fact, he had clearly and correctly stated that members of the military “can refuse illegal orders,” in keeping with the body of law that addresses when service members are obligated to obey military orders.
Even if his speech had encouraged members of the military to resist lawful orders, Senator Kelly is owed protections under the First Amendment as a retired member of the U.S. military. “While restricted for active-duty service members, engaging in political speech is an inherent part of the job when serving as Members of Congress,” the brief states. “This applies equally to retired service members. Any other rule would mean that citizens who are represented by retired military would have unequal and less robust representation than when they are represented by elected members who have never served.”
Moreover, subjecting the U.S. senator to charges for his speech would gravely violate the separation of powers and impede members of Congress from carrying out their legislative functions. The Supreme Court has made clear it is imperative for elected officials to communicate freely on issues of public import and that such speech is essential for preserving the balance of power between Congress and the executive branch.
According to the brief, “It is difficult to avoid the conclusion that this administration is using military jurisdiction in an effort to intimidate vocal Congressional opponents of controversial Executive Branch policies. This represents a grave threat to the checks and balances and separation of powers on which our system of government depends.”
The Trump administration has appealed the preliminary injunction issued in February 2026 by Senior Judge Richard J. Leon of the District of Columbia District Court. The U.S. Court of Appeals for the District of Columbia Circuit is set to hear oral arguments on May 7, 2026.
About CERL
CERL is a non-partisan interdisciplinary institute at the University of Pennsylvania dedicated to preserving and promoting ethics and the rule of law in national security, warfare, and democratic governance. CERL draws from the study of law, philosophy, and ethics to answer the difficult questions that arise in domestic and transnational crises and conflicts.
About Claire Finkelstein
Claire Finkelstein, Founder and Faculty Director of CERL, is the Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania. Her current research addresses democratic governance, presidential authority, the law of armed conflict, civilian-military relations, and professional ethics for lawyers. Finkelstein is a co-editor of The Oxford Series in Ethics, National Security, and the Rule of Law. She has published widely in law reviews and other fora on topics relating to democratic governance and most recently was the primary author of a brief filed on behalf of 155 members of Congress before the U.S. Supreme Court involving the Illinois National Guard. Finkelstein is also a sought-after national security consultant, briefing individuals, Pentagon officials, U.S. Senate staff, and JAG Corps members on issues relating to national security law and practice. She is also regularly consulted on matters of personal and professional ethics. She is a frequent radio, podcast, broadcast, and print commentator and has published op-eds in The New York Times, The Washington Post, Bloomberg, The Guardian, Lawfare, Just Security, and other outlets.