Honest answer: we don’t fucking know. The discarding of Chevron, coupled with the determination a rule may be challenged from the moment of harm and not from the moment the rule was made, throws more or less the entirety of administrative law - the basis of a regulatory system - into flux.
Like, when I say the impact of the last week of rulings can’t be understated, I mean it because Chevron was like…a foundational thing for administrative law for the last four decades.
Add into that the determination that we can’t prosecute a president who commits a crime if it’s an official act, coupled with the absolute lack of definition as to what constitutes an official act, and we have no fucking clue.
Also, little pissed the reasoning for the latter was “We don’t want a president to be concerned about criminal culpability because it may stop them from acting!” and I mean, actually, yes, I want our executive to be considering whether they’re breaking the fucking law before acting.
It’s like “The President is responsible for the execution and enforcement of the laws, so if he has to break a few of those laws to do so, you know, sometimes you gotta kill the patient to cure the disease.”
And with all respect to my friends in the military and who have served in the military but “The military won’t obey an illegal order” is not comforting because I have met a number of members of our military who absolutely fucking will.
Like, I know a lot of good servicemembers who will balk at plainly illegal and immoral orders. But I also know some guys who completely made me understand how that whole “just following orders” thing got started
Honestly, that’s the big issue and will likely result in anyone decent in the military being imprisoned, executed (if in a war zone), or just a mass exodus because right now… ANY orders the president gives are now legal, as long as it’s an official order. My career will probably be over within…
Yep.
The people who were surprised by the "just following orders" thing always confused me. You have a rigid hierarchy and severe punishment for not following orders, so ... shouldn't it be assumed that many people will follow even horrific, illegal orders?
The illegality of the order also often gets more diffuse the further you go down the chain of command. The individual who carries out a task may not have any meaningful sense of how that and a hundred other mundane, logistical acts come together to constitute a high crime.
The first one to balk will be replaced. The rest will get the hint. Impeachment won’t matter because immunity will cover bribery and high crimes and misdemeanors. Giving teeth to an already used defense. There can never be any legal basis for articles of impeachment. This ruling ruins the republic.
The first one to balk will be replaced, and then we'll eventually have a military that behaves like our current police. Thugs, just with bigger and better weapons, and national legal impunity.
If the President is immune ... and he issues an 'illegal order'... is it still an illegal order? Probably but if the President can issue it without consequences, and the President can pardon everyone else, where are the consequences for ordering the killing of a politician or a judge?
It's still an unlawful order even if the POTUS giving it couldn't be prosecuted. But then all that would have to happen is for POTUS to say "and I'll pardon you for it, so don't worry about any court-martial". As POTUS Trump pardoned war criminals.
I have already seen a “the military would never kill a US citizen without due process, that would violate the 14th Amendment” take on Twitter today.
I presume he missed Al-Aulaqi, seeing as he was 11 at the time.
The people I usually hear that from are older, long out of service, frequently not retired from the service, and looking back with some kind of rose tinted glasses suitable for singing along with "Gee, I Wish I Was Back In The Army".
Although there are enlisted soldiers who THINK they're lawyers, in fifteen years of service I never met one with a JD or a bar card. "You must refuse an illegal order" seems like a great talking point but an exceptionally difficult thing to execute in the moment.
I remember when we used to think that Supreme Court Justices typically had higher than average intelligence
now we know they merely have higher than average avarice
The blythe dismissal of international law by several recent Tory prime ministers is one of my reasons for voting against the the Tories on Thursday. And they too of course have long claimed the mantle of 'the party of Law and Order'.
The “nuclear time bomb will go off if we don’t torture this guy!” remedy was always meant to be getting pardoned by the next Pres if it was really justified, I thought
