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Federal Employees Are Under No Obligation To Carry Out An Illegal Order


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Gallons of ink have already been spilled on the pages of America’s newspapers by scholars and lawyers explaining that President Obama does not have all or key elements of the authority he claims to have to grant amnesty to millions of illegal aliens.
 
And gallons more have been spilled explaining the details of how such an illegal and unconstitutional amnesty would work and the steps Congress might take to defund it.
 
But what no one seems to have recognized is that it takes people – federal employees, sworn law enforcement agents, and maybe even some military personnel – to accomplish Obama’s illegal goals.
 
Someone has to let the illegal aliens out of jail, issue the documents, mail the green cards and do all the hundreds of other tasks necessary to carry out Obama’s illegal and unconstitutional scheme. And each of those individuals took an oath to protect and defend the Constitution of the United States, not blindly follow a president’s orders.
 
And there’s a good bit of evidence that federal employees, sworn law enforcement agents and military officers can not only refuse an illegal order, but if they don’t they accrue personal criminal or civil liability.
 
American military law and tradition holds that military members are accountable for their actions even while following orders -- if the order was illegal. So, an order that is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it.
 
U.S. military law has long held that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).*
 
So, U.S. military personnel are authorized by their oath of enlistment and training to refuse unlawful orders, indeed, officers are actually authorized to arrest those who issue unlawful orders, unlikely as it is that President Obama’s military aide will attempt to arrest him.
 
Likewise, various agencies of the federal government have rules and regulations regarding illegal orders.  Such rules tend to follow a formula such as this from a USDA ethics briefing; “USDA Employees must follow supervisory instructions unless the employee perceives that they are illegal or would threaten his or her personal safety. Supervisory instructions have to be legitimate and work-related not arbitrary or capricious.”
 
Naturally, federal employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate.
 
Employees caught in this ordered-to-do-wrong bind are generally advised to adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).
 
An exception to this rule applies to “certain limited circumstances where obedience would place the employee in a clearly dangerous situation, or when complying with the order would cause him irreparable harm.”** Federal employees concerned that they’ve been told to do something criminally illegal or who have been subjected to retaliation for blowing the whistle on wrongdoing may have certain legal protections and should immediately contact a federal employment law attorney, says Mathew B. Tully of Tully Rinckey, PLC.
 
So the “obey now, grieve later” dictum would seem to encourage compliance with any order that facilitates President Obama’s unlawful executive amnesty. Except that it is hard to imagine what might fit the definition of "irreparable harm" better than illegally giving legal residency and work status to millions of illegal aliens.

The Supreme Court held in Marbury v. Madison, that an act passed as law in obvious violation of the U.S. Constitution is not a law, but void. 

In the now quaint sounding words of Justice Marshall, “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
 
Meaning that an “executive order,” which has less status than a statue passed by Congress, that is in obvious violation of the U.S. Constitution is not law, but void, and therefore not a lawful order requiring compliance by any federal employee, military officer or sworn law enforcement agent.
 
Marbury v. Madison also had this to say about the conduct of federal officials, “when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.
 
“The conclusion from this reasoning is,” wrote Justice Marshall, “that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
 
Of course such a principled stand won’t be easy or pleasant – it would risk the employee or officer’s career, financial security and reputation.
 
As Chris Crane, president of the National ICE Council, has told the media on numerous occasions, Immigration and Customs Enforcement officers are already facing retaliation if they fulfill their clear responsibilities under the law. One officer was threatened with a three-day suspension and could ultimately lose his job and pension if he arrests another illegal not on the Obama administration’s "priority" list.
 
In addition to the National ICE Council another group that has stepped forward to offer support and encouragement to federal employees, sworn law enforcement officers and military personnel who might find themselves in the ethical and constitutional dilemma of being given an illegal order is Oath Keepers, a non-partisan association of current and formerly serving military, reserves, National Guard, veterans, Peace Officers, and Fire Fighters and those who support them.
 
Stewart Rhodes, Founder and President of Oath Keepers, issued a statement after President Obama’s speech saying, “If we don’t have rule of law that applies to the government, under the Constitution as the Supreme Law of the Land, then we have a dictatorship, and We the People are absolved of any obligation or obedience to such usurpers and oath-breakers.”
 
Relying on Justice Marshall’s reasoning, over 210 years of Supreme Court precedent, military law and precedent and various departmental regulations it would seem that federal employees, sworn law enforcement officers or military personnel can reasonably conclude that Obama’s executive actions to grant amnesty to millions of illegal aliens are illegal and or unconstitutional. These principled federal officers and employees have both the obligation to disobey those orders and a legal right to protection from retribution if they do.
 
It is time that all Americans stand against oath-breakers like Barack Obama, and with any principled Oath Keeper who chooses to refuse Obama's illegal and unconstitutional order to grant amnesty to millions of illegal aliens.

CALL YOUR REPRESENTATIVE and SENATORS at 1-866-220-0044 (Capitol Switchboard) NOW. TELL THEM TO STOP OBAMA'S UNCONSTITUTIONAL AMNESTY #FightOrBeComplicit
 
*Hat tip to author and retired USAF First Sergeant Rod Powers, author of Barrons' Officer Candidate School Tests and many other books and articles on military life.
 
**Hat tip to Mathew B. Tully of Tully Rinckey PLLC, an Arlington, VA firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

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Start a fund for legal fees

There needs to be a fund for legal fees for any Federal employee who decides to not follow the unlawful executive order by Obama on amnesty. I'll bet there would be plenty of people who would donate money towards the fund.

Start a fund for legal fees

There needs to be a fund for legal fees for any Federal employee who decides to not follow the unlawful executive order by Obama on amnesty. I'll bet there would be plenty of people who would donate money towards the fund.