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Steve Vladeck Profile picture
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15 Jan, 4 tweets, 1 min read
Listen—if you’re going to stage a coup, secretly invoke the Insurrection Act, and declare martial law, who *better* to conspire with than the MyPillow guy?!?
And just for the record, no—none of this could actually work. Under the absolute terms of Section 1 of the Twentieth Amendment, Trump’s term is over at noon (EST) on Wednesday, no matter how much nonsense he — or his “advisers” — tries to pull between now and then.
As for the Insurrection Act, one more reminder that invoking it is *not* tantamount to invoking “martial law.”

The military under that statute is tasked with enforcing the same laws as civilian law enforcement — *supplementing* civilian law enforcement, not *supplanting* it.
Here's a more detailed #thread from me unpacking the legal analysis:

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More from @steve_vladeck

Steve Vladeck Profile picture
15 Jan
1. Thanks to MyPillow guy (sigh), here's, hopefully for the last forking time, one more #thread on the Insurrection Act — and why there's neither a legal nor practical pathway by which Trump could use it to somehow stay in power and/or prevent Biden's inauguration next Wednesday:
2. Let's start at the beginning. The "Insurrection Act" is actually shorthand for a *series* of statutes dating back to 1792 that authorize the President to use the military for domestic law enforcement.

You'll find them today at 10 U.S.C. §§ 251–55:

law.cornell.edu/uscode/text/10…
3. Critically, invoking the Insurrection Act is *not* tantamount to invoking "martial law." Almost every invocation of the statute throughout its history has been to *supplement* civilian law enforcement, not to *supplant* it — most recently during the Rodney King riots in LA.
Read 9 tweets
Steve Vladeck Profile picture
9 Jan
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.
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).
Read 9 tweets
Steve Vladeck Profile picture
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.
Read 6 tweets
Steve Vladeck Profile picture
18 Dec 20
#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":

supremecourt.gov/opinions/20pdf…
Majority: "Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time."
Writing for himself and Justices Sotomayor and Kagan, Justice Breyer dissents on justiciability, and would also affirm (holding that the Trump memo is unlawful) on the merits.
Read 4 tweets
Steve Vladeck Profile picture
16 Dec 20
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:
Read 6 tweets
Steve Vladeck Profile picture
15 Dec 20
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:
Read 4 tweets

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