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Steve Vladeck

15 Jan, 9 tweets, 3 min read

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.

4. That's because martial law isn't "invoked"; it's a *factual* state of affairs in which there is no functioning civilian government.

As #SCOTUS held in 1866, it "can never be applied ... where the courts are open and their process unobstructed."

supreme.justia.com/cases/federal/…

5. So even if Trump *were* to invoke the Insurrection Act, all that he could lawfully do under that statute is to order the military to ... enforce federal (and, depending on the provision, state) laws.

It is not, and has never been, a mechanism for *overriding* those laws.

6. And to those who might respond that "Trump doesn't care about laws," fair enough. But the military does. Invoking the Insurrection Act is not unlawful per se, but using it to order the military to prevent Biden's inauguration or take steps to keep Trump in power clearly is.

7. That's because the unambiguous text of Section 1 of the Twentieth Amendment provides that Trump's term ends at noon (EST) on Wednesday. Even if there's tension between them (and there isn't), a statute like the Insurrection Act *cannot* override a constitutional provision.

8. Trump can (and may) still attempt some pretty shady stuff between now and next Wednesday.

And he may even manage to pull off some of it (like pardoning everyone who stormed the Capitol last Wednesday).

That's despicable, and it's conduct for which he should be sanctioned.

9. But MyPillow guy's not-so-secret notes notwithstanding, there's nothing in the Insurrection Act that provides any legal *or* practical mechanism for Trump to avoid his fate under the 20th Amendment.

One way or the other, his presidency ends in 113 hours and 50 minutes.

/end

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Steve Vladeck

@steve_vladeck

15 Jan

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.

Read 4 tweets

Steve Vladeck

@steve_vladeck

9 Jan

@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).

Read 9 tweets

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.

Read 6 tweets

Steve Vladeck

@steve_vladeck

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

@steve_vladeck

16 Dec 20

@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:

Read 6 tweets

Steve Vladeck

@steve_vladeck

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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