I think that the government will no doubt move to dismiss due to lack of standing. And I think the judge will agree.
Further, we have a bunch of treaties and other operative legal constraints which are based on people acting on Command authority. And although I am not a military lawyer, I believe international law requires troops to actively refuse to act on illegal orders.
The Pentagon takes a dim view of soldiers who take it upon themselves to decide what orders are legal and what are not. Just ask Michael New.
I don't think the military can live with this state of affairs.
They won't have to.
I guess you may not recognize it but that is exactly where they are now under the result in Cook.
Now I suppose you might argue that withdrawing Cook's orders was voluntary on their part--they were faced with a choice of producing evidence of Obama's eligibility to serve or doing something to get rid of the case.
In Cook, counsel left them with the option of stipulating to get rid of the order making the case moot which is what they did.
I might have drafted my prayer for relief a little more broadly but she didn't do that.
But there are a handful of other cases filed since where plaintiff seeks evidence that the Commander in Chief is really the Commander in Chief before Plaintiff is required to obey orders.
I haven't noticed dispositions of any of those cases but an old friend of mine who is a Reserve JAG officer with a very high rank tells me that JAGS are being instructed to stipulate off the objectionable order to get the case dismissed. We did have some discussions about what you might try to plead to keep them from doing that.
Why then was I required to attend, and later present, briefings on the requirement to disobey unlawful orders? It was a part of our AFROTC curriculum too, IIRC. They did emphasize that one had best be correct about the illegality of the orders, but also that one was responsible for any consequences flowing from obeying an illegal order.