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Steve Vladeck

9 Jan, 9 tweets, 3 min read

@RonanFarrow

1. In light of this @RonanFarrow story about Larry Rendall Brock, Jr., an Air Force veteran, here's a quick #thread about the complicated, confusing, and evolving state of the law regarding when the military can (and cannot) court-martial retired servicemembers.

https://twitter.com/RonanFarrow/status/1347763766830780416

2. First, an important distinction: The military can *recall* most retirees to active duty. But that's not the same thing as whether they can be tried by court-martial for offenses committed *while* retired (and before being recalled).

That's where things get complicated.

3. The Uniform Code of Military Justice (UCMJ) authorizes courts-martial for *any* offense committed by those who have retired from a "regular component" and are receiving pay, along with members of the Fleet Reserve and Fleet Marine Corps Reserve (who are effectively retirees).

4. But the UCMJ authorizes courts-martial for offenses committed by those who have retired from *reserve* components only while "receiving hospitalization from an armed force." And #SCOTUS held in 1955 that the military cannot try those who have *separated* from the armed forces.

5. So whether Brock can be tried by court-martial — under current law, anyway — for his role in Wednesday's attacks depends upon his *exact* status as of Wednesday, i.e., whether he is separated from the Air Force, retired from active duty, or retired from the reserves.

But...

6. This legal framework is being challenged. Whether the *Constitution* allows the military to court-martial *any* retired servicemember for offenses committed while retired is currently at issue in two separate lawsuits (full disclosure: I represent the retiree in both of them).

7. In Larrabee v. Braithwaite, the DC district court ruled in November that the Constitution forbids the court-martial of members of the Fleet Marine Corps Reserve for offenses committed after retiring from active duty:

cases.justia.com/federal/distri…

That ruling may soon be appealed.

8. And in United States v. Begani, the Court of Appeals for the Armed Forces will hear argument in March or April on both the Larrabee question *and* whether the UCMJ violates equal protection insofar as the distinction between active-duty and reservist retirees is arbitrary.

9. Thus, the existing law rests on complex distinctions *and* there's ongoing litigation that could significantly narrow—if not altogether eliminate—the circumstances in which *any* retired servicemembers can be tried by court-martial for offenses committed *while* retired.

/end

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Steve Vladeck

@steve_vladeck

30 Dec 20

1. Everyone needs to take a deep breath.

Yes, the President and far too many Republicans are *continuing* to engage in dangerous, anti-democratic behavior—despite having utterly failed to substantiate *any* of the claimed electoral improprieties. But it's just not going to work.

2. First, even if a Senator like Hawley joins a House member's challenge to a particular state's electors, there's nowhere near a majority in *either* chamber (let alone both) to sustain the challenge. All that will happen from these challenges is the process getting slowed down.

3. Second, no, that doesn't mean that Republicans can "run out the clock." Even if McConnell somehow allowed this nonsense to drag on for *two weeks,* we'd end up with Acting President Pelosi at noon on 1/20, not President Trump. And the Twelfth Amendment isn't to the contrary.

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#BREAKING: #SCOTUS throws out challenge to Trump administration's exclusion of undocumented immigrants from next year's apportionment, with 6-3 majority holding that "this case is riddled with contingencies and speculation that impede judicial review":

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Steve Vladeck

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@TheHillOpinion

There's a new piece in @TheHillOpinion arguing that, if Republicans *slow down* the counting of electoral votes enough, they can generate a scenario in which Trump wins:

thehill.com/opinion/white-…

Here's a short #thread on why this scenario is not possible—let alone plausible:

The claim rises and falls on the 12th Amendment. It provides that, if no presidential or vice-presidential candidate receives a majority of electoral votes, they're chosen by the House (one vote per state) and Senate (one vote per Senator), respectively:

law.cornell.edu/constitution/a…

With Republicans controlling a majority of state delegations in the new House, and perhaps a majority of the Senate as well (depending upon GA), the argument goes that, if they just stall long enough, they can choose Trump and Pence.

This argument just doesn't work. Here's why:

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Steve Vladeck

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I got an e-mail today from a county official in Texas who had some choice words about my analysis of the Texas #SCOTUS case and my responsibility as a law professor to fairly present "both sides."

I hope he enjoys reading my 1,336-word reply half as much as I enjoyed writing it.

Here’s the original note, with identifying information redacted:

Here’s my response:

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Steve Vladeck

@steve_vladeck

8 Dec 20

1. Texas is trying to sue PA, GA, MI, and WI to challenge their election results *directly* in #SCOTUS.

How can it do that, how does that work, and is this going anywhere?

Here's a quick #thread on the apex of legal arcana:

The U.S. Supreme Court's "original jurisdiction."

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Because lower courts might be biased, #SCOTUS was given "original" jurisdiction in such cases — allowing such suits to *start* there.

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law.cornell.edu/uscode/text/28…

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Steve Vladeck

@steve_vladeck

8 Dec 20

It looks like we have a new leader in the “craziest lawsuit filed to purportedly challenge the election” category:

The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.

(Spoiler alert: The Court is *never* going to hear this one.)

Although the Supreme Court has “exclusive” jurisdiction over disputes between states, it does not automatically hear all such cases.

Rather, states have to receive “leave to file,” which usually requires showing that there’s no other forum in which these issues can be resolved.