Dishonor and the Civil Service

Earlier this month, there was a viral exchange between Senator John Kennedy and David Bier, the Director of Immigration for the Cato Institute. As often happens, celebrants for both sides claimed victory. 

My point here is not to discuss the particulars of their debate. But I do want to comment on a question it prompts: Should government employees obey orders that they consider unethical? Here is the exchange that caught my attention: 

SEN. KENNEDY: On February 11, 2026, you posted on Bluesky — quote: “The Democrats’ video telling service members to ignore illegal orders didn’t go far enough. They should have also urged them to refuse unethical orders, whether illegal or not. There are many things deemed legal that are still obviously unethical, and everyone should hold themselves to this higher law.” End quote. Did I read that correctly? 

MR. BIER: I believe you did. Do you disagree with it? Do you think people should do unethical things in their capacity as— 

Bier’s opinion echoes the “resistance” view of the civil service. As Jennifer Nou recounts, “[b]ureaucrats seem to be increasingly opposing the President in their official capacity. And they are doing so despite strong agency norms to the contrary.” I've always found such behavior to be wrong, but it’s helpful to consider why.  

First, I start with the law. No one is obligated to obey unlawful orders. As early as 1804, Chief Justice Marshall observed that if an act is illegal, the doer can be liable, even if the President gave the order. But it is equally true that civil servants can be fired for disobeying lawful orders. After all, “failure to follow a supervisor’s directive on a discretionary matter, constitutes ‘good cause’ for removal.” In short, “public employees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist.” 

So, government employees, be warned: Just because you consider an order unethical does not mean that you can subvert it and still keep your job.  

That answer, however, is not complete. Should that be the law? 

I’ve been working on an essay about the late Judge Laurence Silbeman of the U.S. Court of Appeals for the District of Columbia Circuit. (It will be published shortly in the Texas Review of Law & Politics.) Judge Silberman — a close friend of Justices Antonin Scalia and Clarence Thomas, and a legendary judge in his own right — gave a speech entitled “On Honor.” Because Senator Kennedy’s views seem very similar to Silberman’s, it is worthwhile to return to that speech.  

Silberman agreed that just because some act is “legal” does not mean it isn’t “blameworthy.” But he derided the lack of “honor” inherent in subverting lawful orders. Those who serve in the government “should have, metaphorically speaking, their resignation letters in pocket in case they are ever confronted with a question of conscience.” He thus believed that “it is flatly dishonorable for a political appointee anonymously to leak to the press his or her discomfort with administration policies. If those policies offend you, you should resign.”  

He had a similar perspective on the civil service. True, “career civil servants … do not owe political allegiance to the Presidents they serve,” yet “is it not a fundamental premise of our democracy that the winners of elections, and their appointees, are owed a measure of loyalty so that the business of government can go on?” He therefore concluded: “I maintain the old‐fashioned view that civil servants who disagree with a policy direction — and who have expressed that view through appropriate channels — have only two options: to resign publicly or to soldier on.”  

Scalia held a similar view about judges. As he saw it, if “positive law places judges in the position of being the instrument of evil, the judge must recuse from the case or (if there are many such cases) resign from the bench” and perhaps “lead a revolution.”   

I agree with Silberman and Scalia. Putting aside situations in which a a good-faith religious accommodation may be appropriate it is dishonorable for a government employee not to follow lawful orders, and if an employee, for the sake of conscience, cannot do what is ordered, the honorable path is resignation. To take taxpayer money as salary while disobeying lawful orders is theft. If the laws are bad, we should fix — not subvert — them.     

Of course, some might say that I’m making the issue too easy. Consider Sister Simplice from Victor Hugo’s Les Misérables, whose “distinctive trait” was her “imperturbable veracity.” Because lying is evil, she never did it. “Little lie, innocent lie — does such a thing exist? To lie is the absolute form of evil.” Yet in one of the novel’s most dramatic scenes, what does she do? She lied, twice, to allow Jean Valjean to save a child:  

This was Sister Simplice, who had never told a lie in her life. Javert knew it and held her in special veneration in consequence. 

“Sister,” said he, “are you alone in this room?” …. 

The sister raised her eyes and answered:— “Yes.” 

“Then,” resumed Javert, “you will excuse me if I persist; it is my duty; you have not seen a certain person—a man—this evening? He has escaped; we are in search of him—that Jean Valjean; you have not seen him?” 

The sister replied:—“No.” 

She lied. She had lied twice in succession, one after the other, without hesitation, promptly, as a person does when sacrificing herself. 

“Pardon me,” said Javert, and he retired with a deep bow. 

O sainted maid! you left this world many years ago; you have rejoined your sisters, the virgins, and your brothers, the angels, in the light; may this lie be counted to your credit in paradise! 

Sister Simplice, of course, was not a civil servant, but lying is lying, and she lied. Can there never be circumstances in which subverting immoral orders is the right thing to do?  

At its core, that question is one that philosophers have debated for time immemorial. Professor Paul Butler penned an article about whether judges (and presumably others) should ever subvert the law. He ultimately “recommend[ed] judicial lying only when it will thwart extreme injustice — a recommendation that, if followed, would reduce the subversion that is now endemic in our justice system.” Of course, people will disagree about what counts as “extreme injustice.” But even if such a standard were permissible (and Scalia thought not), then “extreme” must truly be “extreme”— something far beyond even fervent policy disagreement. Otherwise, as Silberman notes, democracy will fail.   

Silberman did not view Washington, D.C. through rose-colored glasses. Early in his career, he refused to engage in conduct he believed was wrong, even though it meant being fired. And he saw first-hand the wickedness done by J. Edgar Hoover’s FBI. But he also did not believe it was his role to subvert lawful orders. His commitment to “the demands of honor” would not allow it.   

Aaron L. Nielson is a senior fellow at the Civitas Institute and holds the Charles I. Francis Professorship in Law at the University of Texas at Austin School of Law.