WASHINGTON DC — A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Thursday appeared skeptical that the Trump administration could legally punish Senator Mark Kelly over his public remarks urging service members to refuse unlawful orders. The panel heard the Pentagon's appeal of a preliminary injunction that has blocked the administration's effort to censure Kelly.

Members of the panel criticized the government's efforts to censure Kelly during more than an hour of questioning. Circuit Judge Florence Pan pressed a Justice Department lawyer on the implications of the administration's position.

"These are people who serve their country. Many of them put their lives on the line. You're 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?" Pan said.

John Bailey, a Justice Department lawyer, defended the administration's approach during the hearing. "It's very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation," Bailey said. The administration argued that retired officers remain part of the armed forces, are subject to recall to active duty and can influence service members.

Kelly, a former astronaut, sued the Pentagon in January, alleging that the Trump administration's move to demote him and reduce his retirement pay was retaliatory and violated the First Amendment's free speech protections. His lawyers argued that the Pentagon's actions amounted to retaliation against protected political speech on matters of public concern.

In February, U.S. District Judge Richard Leon issued a preliminary injunction blocking the administration from pursuing its campaign to censure Kelly. The Pentagon appealed the injunction to the D.C. Circuit.

Defense Secretary Pete Hegseth moved to sanction Kelly after the senator participated in a video in November 2025. In the clip, Kelly stated: "Our laws are clear: you can refuse illegal orders."

After Thursday's hearing, Kelly spoke outside the courthouse in downtown Washington. "This was a day in court not just for me, but for the first amendment rights of millions of us," he said.