The 2026 Legal Landscape: When “Illegal Orders” Become the Subject of Federal Lawsuits

A Justice Department attorney was asked a question that had been building for months on a Thursday morning in May 2026 by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in a downtown Washington courtroom: are you really arguing that a retired Navy captain giving a civics lesson about military law has to give up his pension to say it? The attorney didn’t have a clear response. The sharp version was read aloud by Judge Florence Pan: “These are people who serve their country. Many of them risked their lives. You’re saying that in order to say something that is taught in textbooks at West Point and the Naval Academy—that you can defy unlawful orders—they must renounce their retired status?

No single case file can fully capture the 2026 legal landscape, but that brief, accurate, and heavily recorded exchange did. In buildings ranging from the Northern District of San Francisco to the District of Columbia, there are federal district courts and appellate panels. Circuit to the Eastern District of Virginia, a single question keeps coming up in various forms: what happens to the individuals instructed to carry out an executive branch directive that violates the law, as well as to the officials who issued it?

Increasingly, a lawsuit is the solution. Then one more. Through 2025 and 2026, the number of federal lawsuits contesting executive orders and internal agency directives increased at a rate that put pressure on court dockets and resulted in a Just Security tracker with dozens of open cases. Reductions in Force, the revocation of collective bargaining rights, partisan messaging incorporated into government email auto-replies, and loyalty questions added to civil service hiring forms are all being contested by the American Federation of Government Employees alone in multiple circuits at the same time. The administration’s attempt to completely invalidate civil service protections has been appealed by the Washington Litigation Group. In March 2026, a federal judge at the Department of Veterans Affairs reinstated a master collective bargaining agreement after the government sent a re-termination letter that the court deemed “not in compliance” with its own injunction. The judge also requested that the government provide justification for not being held in contempt.

The most common word in all of this litigation is not “unconstitutional,” despite the fact that it appears frequently. It’s “arbitrary.” According to the Administrative Procedure Act, agency actions must be justified, adhere to the correct notice-and-comment procedures, and not conflict with the statutory authority that Congress has granted the agency. In 2026, judges have been utilizing the APA frequently and, in certain situations, with apparent impatience. When the government orders RIFs at FEMA during a shutdown, terminates Voice of America employees, shuts down USAGM’s broadcasting operations, or eliminates TSA officers’ collective bargaining rights on the grounds of national security, courts are requesting to see the legal basis and finding it lacking.

In all of this, the Mark Kelly case is situated at a particular and significant intersection. In November 2025, Kelly and five colleagues from the military or intelligence services released a video reminding soldiers that they are not obligated to follow illegal orders. This legal stance is not marginal. It is taught at the service academies and included in the Manual for Courts-Martial. Kelly filed a lawsuit alleging First Amendment retaliation after the administration threatened to reduce her retired rank and pension. In a brief endorsing Kelly, the non-Democratic Cato Institute called the Pentagon’s action “unconstitutional retaliation for protected speech.” Judge Pillard pointed out the obvious when the government’s own attorney acknowledged during oral argument that Kelly had not specifically called for disobedience of legal orders: the government had based its case on a reading of the video that it was unable to support when questioned.

As these cases mount, there’s a sense that the courts are involved in something more akin to persistent institutional opposition to a pattern of executive overreach than regular judicial review. There have been injunctions issued. An order for compliance has been issued. In apparent defiance of those injunctions, retermination letters have been sent, and judges have set up contempt hearings. Although the formal language of court orders is consistent and procedural, the content of some rulings has an edge. For example, one judge described the government as having “trampled on” constitutional rights, while another directly challenged the idea that loyalty to the chain of command can take precedence over constitutional obligations.

How many of these cases eventually make it to the Supreme Court and what the Court will do with them are still unknown. In particular, the Kelly case appears to be on an upward trajectory. However, it is already evident in May 2026 that the federal judiciary has consistently decided to treat the question of when orders become unlawful as a judicial question rather than an executive one. When taken as a whole, these decisions begin to resemble verdicts.