The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on Thursday, May 7, in the case Kelly v. Hegseth, weighing whether the government’s attempts to discipline Senator Mark Kelly (D-AZ) for his statements in a video he and five other Democratic lawmakers released, in which they said service members can disobey unlawful orders, are legal.
Two of the three judges on the panel appeared inclined to support the position of Senator Kelly and that of CERL that what the U.S. senator said was accurate and that penalizing him would violate his free speech protections.
One member of the panel stated, “All Senator Kelly said was a truism, which is that you should decline to follow illegal orders, and nobody disputes that that’s an accurate statement.”
A judge also noted, “…these are people who served their country, many of them put their lives on the line, and you are saying that they have to give up their retired status in order to say something that is a textbook example, taught at West Point and the Naval Academy, that you can disobey illegal orders.”
CERL filed an amicus brief in Kelly v. Hegseth, urging the Court to uphold a lower court’s decision blocking Secretary of Defense Pete Hegseth from punishing Senator Kelly for his speech. The brief asserts that Senator Kelly wrongly faces discipline for speech that “accurately reflects the law of superior 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. Moreover, subjecting him to punishment for his speech would gravely violate the separation of powers and impede members of Congress from carrying out their legislative functions.
Mr. John Bailey, an administration lawyer, called the senator’s statement a “wink and a nod” for service members to disobey lawful orders. However, Mr. Benjamin Mizer, counsel for Senator Kelly, noted there are “seven amicus briefs, several by veterans groups,” before the Court that “underscore the importance of veterans being able to contribute to public debate.”
“The attempt to discipline Senator Kelly on the part of the Trump administration reflects not only a concerning lack of understanding of the law on 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.”
A final decision from the Court is pending.