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The question is then what the Constitution says about a president who fails to execute his constitutional obligations, such as lifting martial law once it is nu

The question is then what the Constitution says about a president who fails to execute his constitutional obligations, such as lifting martial law once it is nullified. Is there an impeachment process for a constitutional violations or a faster solution. I don't even know if there is a faster route than impeachment in the US system.

JumpCrisscross 2y ago
> Is there an impeachment process for a constitutional violations There's an impeachment process. Creating a separate, faster one for constitutional violations is just inviting trouble.
- s1artibartfast 2y ago
  If I recall correctly, I thought there was some legal provision in the US for the military to disobey unconstitutional orders. If it doesn't exist de jure, I suppose it always exists de facto, both in the US and elsewhere. I think it is always interesting when the curtain gets pulled back to reveal how all of our political systems and norms simply overlay the fact that power is the ultimate law of the land.
  - psunavy03 2y ago
    As a retired military officer, disobeying illegal orders is expected. An order to commit a war crime is itself a crime, not a lawful order. The sticky part comes in when the venue for determining the legality of the order often then becomes one's own court-martial and resulting appeals. I'm not sure how much case law there is on the subject.
    - vundercind 2y ago
      This is further complicated by a history (yes, in the US) of not just failing to prosecute obvious war criminals, and of pardoning many who do somehow manage to get convicted, but wide swaths of the population treating them as heroes. There are recent examples, but look at how we treated those with the most direct culpability for the My Lai massacre, and further, how the guy who took direct action to stop it got treated—this stuff goes back quite a bit, we pretty consistently don't just tolerate but coddle war criminals, so... risk disobeying the illegal order and maybe get treated like a villain, or become an actual villain but good odds you get hero treatment? The law is arguably not what's written, but what actually happens, and analyzed that way our laws about war crime are complicated.
      - jp_nc 2y ago
        The recent SCOTUS decision in the US will make this endlessly complicated. If the illegal order is deemed an official act, SCOTUS has said POTUS has liability. So does the military carry out an illegal act (which can’t be illegal), or refuse and face charges of insubordination?
        vundercind 2y ago
        Part of what makes this so obviously a fucked-up decision is that now some poor E-3 can easily be prosecuted for egregiously-illegal horse-shit while the "buck stops here" fucking President who ordered it is untouchable. Like, if it's not plainly an awful decision on its face (and god, it so very is) then the fact that just about every plausible application of it looks something like that, as far as who can and cannot be held responsible for their actions, should demonstrate that the decision is, in the highest ideal of what it means to be American, deeply un-American.
        rawgabbit 2y ago
        If the President directly orders the military to arrest politicians and citizens, that is clearly illegal. The stumbling block is if the President invokes the Insurrection Act. Which is a bit of a gray area. https://en.m.wikipedia.org/wiki/Insurrection_Act_of_1807 https://en.m.wikipedia.org/wiki/Insurrection_Act_of_1807
  - JumpCrisscross 2y ago
    > I thought there was some legal provision in the US for the military to disobey unconstitutional orders It's less a legal provision than a consequence of humans being the interface of the law. So while there is, in theory, a duty to disobey, there is also a presumption of lawfulness of orders [1][2]. [1] https://ucmjdefense.com/resources/military-offenses/the-lawfulness-of-orders.html https://ucmjdefense.com/resources/military-offenses/the-lawf... [2] https://warontherocks.com/2017/07/when-can-a-soldier-disobey-an-order/ https://warontherocks.com/2017/07/when-can-a-soldier-disobey...
    - psunavy03 2y ago
      Rule 916(d) in the Manual for Courts-Martial, quoted in your second source, is really the pull quote here: > It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. So for those non-military reading, while it's almost always a bad idea to try to sea-lawyer your way out (though some court challenges have worked), you also are expected to use "ordinary sense and understanding" to reject orders like "go massacre those clearly unarmed noncombatants." But if it's not as cartoonishly obvious as that, there's a good chance you will have to defend your actions at a court-martial, and the legality of the order will be down to the interpretation of the presiding military judge and appellate courts.
      - microtherion 2y ago
        But that covers only the case where the accused obeyed an unlawful order. It does NOT cover the case where the accused REFUSED an unlawful order.
        psunavy03 2y ago
        Refusing an ambiguously-lawful order would, under that source, trigger a prosecution or nonjudicial punishment under UCMJ Article 92 - Failure to obey a lawful order or general order. And it would need to be determined at trial and/or on appeal whether the order was lawful, because Article 92 requires the Government to plead/prove four things: - That a member of the armed forces issued a certain lawful order; - That the accused had knowledge of the order; and - That the accused had a duty to obey the order; and - That the accused failed to obey the order. If the order is deemed unlawful by the military judge or appellate court, the case must be dismissed, because the Government has failed to allege an offense.
  - ANewFormation 2y ago
    In the oath officer's swear, it is exclusively to the Constitution - with no mention of anything but - swearing to protect against enemies foreign and domestic. Interestingly the oath for enlisted does include a section on obeying the President, subject to the military Code.
  - kupopuffs 2y ago
    they dropped the lingo but didn't do the homework
  - exe34 2y ago
    it's interesting that very few people would admit this, that society is founded upon violence.
    - mriet 2y ago
      See "Debt, the first 5000 years" by Graeber. Debt exists because of (the threat of) violence. Money exists because of debt (.. is in fact debt). Modern society is based on our monetary system.
      - exe34 2y ago
        it's the book that cemented my hunch.
    - s1artibartfast 2y ago
      Violence is a big part of it, but I used the word power specifically because I think it is more accurate. Violence is a major form of power, but so are utility and persuasion. You can persuade or pay people to things that you can't threaten or force them into.
      - exe34 2y ago
        > You can persuade or pay people to things that you can't threaten or force them into. Any examples? Beyond immaterial things like respect/love/etc?
        s1artibartfast 2y ago
        Sure. One example is when you have inferior force. You cant force someone to do something with threats, but you can pay them to do something. Another example is when the cost of violence is high. If have two people with guns, or MAD scenarios, violence isnt an effective way to get what you want, so payment can be better. The last example and simplest is if you need a service and the other party simply chooses destruction over acquiescence to violence. If a doctor would rather die than be forced to treat you, your violence is useless, and payment would be much better. I tried to give simple human level examples, but they can also be scaled up to groups and states.
  - sbuttgereit 2y ago
    There was a YouTube video from Ward Carroll, a "veteran F-14 Tomcat radar intercept officer, writer, and military commentator", that ultimately deals with this question, though it does so only after establishing a fair amount of background detail. And while on the face of it, this video would appear to jump headlong into a hot button political discussion... it's actually very calm, collected, and appears to be striving to provide an objective analysis from a military perspective about just these issues. https://www.youtube.com/watch?v=IEZ3JSOvY2s https://www.youtube.com/watch?v=IEZ3JSOvY2s
  - rawgabbit 2y ago
    This article addresses the issue. The stumbling block is something called the Insurrection Act. https://www.military.com/daily-news/2024/07/12/what-happens-if-president-issues-potentially-illegal-order-military.html https://www.military.com/daily-news/2024/07/12/what-happens-...
ibejoeb 2y ago
>I don't even know if there is a faster route than impeachment in the US system. There's section 4 of the 25th amendment, but it is untested.
bonzini 2y ago
The declaration of martial law was already unconstitutional in the part that forbids something that is explicitly mentioned in the constitution (a meeting of the Parliament to request that the president lift the martial law). Which is probably why the members of the Parliament only has minor obstacles towards having their meeting.

JumpCrisscross 2y ago

> Is there an impeachment process for a constitutional violations There's an impeachment process. Creating a separate, faster one for constitutional violations is just inviting trouble.

s1artibartfast 2y ago
If I recall correctly, I thought there was some legal provision in the US for the military to disobey unconstitutional orders. If it doesn't exist de jure, I suppose it always exists de facto, both in the US and elsewhere. I think it is always interesting when the curtain gets pulled back to reveal how all of our political systems and norms simply overlay the fact that power is the ultimate law of the land.
- psunavy03 2y ago
  As a retired military officer, disobeying illegal orders is expected. An order to commit a war crime is itself a crime, not a lawful order. The sticky part comes in when the venue for determining the legality of the order often then becomes one's own court-martial and resulting appeals. I'm not sure how much case law there is on the subject.
  - vundercind 2y ago
    This is further complicated by a history (yes, in the US) of not just failing to prosecute obvious war criminals, and of pardoning many who do somehow manage to get convicted, but wide swaths of the population treating them as heroes. There are recent examples, but look at how we treated those with the most direct culpability for the My Lai massacre, and further, how the guy who took direct action to stop it got treated—this stuff goes back quite a bit, we pretty consistently don't just tolerate but coddle war criminals, so... risk disobeying the illegal order and maybe get treated like a villain, or become an actual villain but good odds you get hero treatment? The law is arguably not what's written, but what actually happens, and analyzed that way our laws about war crime are complicated.
    - jp_nc 2y ago
      The recent SCOTUS decision in the US will make this endlessly complicated. If the illegal order is deemed an official act, SCOTUS has said POTUS has liability. So does the military carry out an illegal act (which can’t be illegal), or refuse and face charges of insubordination?
      - vundercind 2y ago
        Part of what makes this so obviously a fucked-up decision is that now some poor E-3 can easily be prosecuted for egregiously-illegal horse-shit while the "buck stops here" fucking President who ordered it is untouchable. Like, if it's not plainly an awful decision on its face (and god, it so very is) then the fact that just about every plausible application of it looks something like that, as far as who can and cannot be held responsible for their actions, should demonstrate that the decision is, in the highest ideal of what it means to be American, deeply un-American.
      - rawgabbit 2y ago
        If the President directly orders the military to arrest politicians and citizens, that is clearly illegal. The stumbling block is if the President invokes the Insurrection Act. Which is a bit of a gray area. https://en.m.wikipedia.org/wiki/Insurrection_Act_of_1807 https://en.m.wikipedia.org/wiki/Insurrection_Act_of_1807
- JumpCrisscross 2y ago
  > I thought there was some legal provision in the US for the military to disobey unconstitutional orders It's less a legal provision than a consequence of humans being the interface of the law. So while there is, in theory, a duty to disobey, there is also a presumption of lawfulness of orders [1][2]. [1] https://ucmjdefense.com/resources/military-offenses/the-lawfulness-of-orders.html https://ucmjdefense.com/resources/military-offenses/the-lawf... [2] https://warontherocks.com/2017/07/when-can-a-soldier-disobey-an-order/ https://warontherocks.com/2017/07/when-can-a-soldier-disobey...
  - psunavy03 2y ago
    Rule 916(d) in the Manual for Courts-Martial, quoted in your second source, is really the pull quote here: > It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. So for those non-military reading, while it's almost always a bad idea to try to sea-lawyer your way out (though some court challenges have worked), you also are expected to use "ordinary sense and understanding" to reject orders like "go massacre those clearly unarmed noncombatants." But if it's not as cartoonishly obvious as that, there's a good chance you will have to defend your actions at a court-martial, and the legality of the order will be down to the interpretation of the presiding military judge and appellate courts.
    - microtherion 2y ago
      But that covers only the case where the accused obeyed an unlawful order. It does NOT cover the case where the accused REFUSED an unlawful order.
      - psunavy03 2y ago
        Refusing an ambiguously-lawful order would, under that source, trigger a prosecution or nonjudicial punishment under UCMJ Article 92 - Failure to obey a lawful order or general order. And it would need to be determined at trial and/or on appeal whether the order was lawful, because Article 92 requires the Government to plead/prove four things: - That a member of the armed forces issued a certain lawful order; - That the accused had knowledge of the order; and - That the accused had a duty to obey the order; and - That the accused failed to obey the order. If the order is deemed unlawful by the military judge or appellate court, the case must be dismissed, because the Government has failed to allege an offense.
- ANewFormation 2y ago
  In the oath officer's swear, it is exclusively to the Constitution - with no mention of anything but - swearing to protect against enemies foreign and domestic. Interestingly the oath for enlisted does include a section on obeying the President, subject to the military Code.
- kupopuffs 2y ago
  they dropped the lingo but didn't do the homework
- exe34 2y ago
  it's interesting that very few people would admit this, that society is founded upon violence.
  - mriet 2y ago
    See "Debt, the first 5000 years" by Graeber. Debt exists because of (the threat of) violence. Money exists because of debt (.. is in fact debt). Modern society is based on our monetary system.
    - exe34 2y ago
      it's the book that cemented my hunch.
  - s1artibartfast 2y ago
    Violence is a big part of it, but I used the word power specifically because I think it is more accurate. Violence is a major form of power, but so are utility and persuasion. You can persuade or pay people to things that you can't threaten or force them into.
    - exe34 2y ago
      > You can persuade or pay people to things that you can't threaten or force them into. Any examples? Beyond immaterial things like respect/love/etc?
      - s1artibartfast 2y ago
        Sure. One example is when you have inferior force. You cant force someone to do something with threats, but you can pay them to do something. Another example is when the cost of violence is high. If have two people with guns, or MAD scenarios, violence isnt an effective way to get what you want, so payment can be better. The last example and simplest is if you need a service and the other party simply chooses destruction over acquiescence to violence. If a doctor would rather die than be forced to treat you, your violence is useless, and payment would be much better. I tried to give simple human level examples, but they can also be scaled up to groups and states.
- sbuttgereit 2y ago
  There was a YouTube video from Ward Carroll, a "veteran F-14 Tomcat radar intercept officer, writer, and military commentator", that ultimately deals with this question, though it does so only after establishing a fair amount of background detail. And while on the face of it, this video would appear to jump headlong into a hot button political discussion... it's actually very calm, collected, and appears to be striving to provide an objective analysis from a military perspective about just these issues. https://www.youtube.com/watch?v=IEZ3JSOvY2s https://www.youtube.com/watch?v=IEZ3JSOvY2s
- rawgabbit 2y ago
  This article addresses the issue. The stumbling block is something called the Insurrection Act. https://www.military.com/daily-news/2024/07/12/what-happens-if-president-issues-potentially-illegal-order-military.html https://www.military.com/daily-news/2024/07/12/what-happens-...

ibejoeb 2y ago

>I don't even know if there is a faster route than impeachment in the US system. There's section 4 of the 25th amendment, but it is untested.

bonzini 2y ago

The declaration of martial law was already unconstitutional in the part that forbids something that is explicitly mentioned in the constitution (a meeting of the Parliament to request that the president lift the martial law). Which is probably why the members of the Parliament only has minor obstacles towards having their meeting.