Posted on 12/07/2010 12:52:05 PM PST by OneWingedShark
I put together a thought experiment on another thread to illustrate the basic problem, as I understand it, in LTC Lankin’s case. Those disapproving of his actions have failed to reply with the much other than “that’s silly,” completely failing to cite regulations, laws, rules, or other such official codification.
For that reason, I should like to post that thought-experiment here and get other veteran’s opinions (and hopefully the backing codifications) on the matter.
Now, let’s say that I ordered the unit to go to the southern AZ border and enforce the border-security with lethal force. These orders are themselves authorized by the Constitution of the United States, to wit:
Article 4, Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, AND SHALL PROTECT EACH OF THEM AGAINST INVASION; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
So then, the only variable concerning the validity of the given orders is the person who is issuing them; in this scenario: me. As in mathematics I have isolated the variable in question, which is that of origin: do those orders which originate from an unqualified source, even if in complete agreement with the Constitution, still carry LAWFUL authority?
That is to say, would those orders be legitimate?
If not, then why are Obama’s orders legitimate?
My thought experiment was criticized as being “Irrelevant to the charges Lakin is facing.” so let’s address that issue by expanding upon the first scenario.
Well, by now, the sergeant is getting mighty frustrated as his superiors refuse to address his concerns about the lawfulness of the orders to deploy to AZ and kill the invading Mexican drug cartels who dare invade that state. He can’t take it up to me because me being the commander of the whole mess will [obviously] just give him a direct order to go on with the deployment.
So, now the sergeant says that he will refuse to deploy unless he is shown proof of my eligibility to command the unit, in specific: proof that I am a commissioned officer.
Is he within his rights to question the legality of his orders to deploy? Why or why not?
Is he within his rights to demand proof that I am eligible to command his unit? Why or why not?
Legal reasoning and citations are more than welcome.
Bonus Scenario:
Let’s say PFC Williams shoots and kills an illegal Mexican-immigrant during the execution of some mission under this deployment of the unit. Note that his orders are pursuant to the Article 4, Sec 4 of the Constitution which guarantees all states of the Union to protection from invasion.
Could he be successfully charged with murder?
Under what conditions, if any, can following the Constitution be said to be illegal?
Please cite your sources for that last question as it is my understanding that the Constitution is the highest law in America.
The unrelated hypothetical situations... They are stupid...
Which ones are unrelated?
And if they’re so stupid then why aren’t you pointing out their specific flaws?
What would be the point?
You’ve had the flaws pointed out to you before, but like most of those who tend to keep this issue alive, none of it registers and you keep claim that no one has answered your question.
Actually what ‘flaws’ were pointed out were along the lines of:
“You’re either a commissioned officer or not.”
While true, it entirely avoids the issues at hand. Further, I have references which state, in no uncertain terms that ALL authority in the military is derived from some higher authority with the highest military authority (the commander-in-chief) deriving his from the Constitution; the Constitution clearly lays out the requirements for President:
1) Age being at least 35, with 14 years residency within the States, and
2) Natural Born Citizen status, excepting those who were citizens of [one of the] States at the time of the ratification.
The title 10 section which someone pointed out as appointing the Secretary of Defense as “The Guy” failed to realize that the sentence before the one he bolded said that he was ASSISTANT TO THE PRESIDENT. Now, if there is no legitimate President to assist, then ANY action he takes is beyond the scope of his authority.
This has zero relevance to the eligibility of BHO.
You might think that BHO is ineligible, but those with the legal authority to make such decisions do not agree with you.
>You might think that BHO is ineligible, but those with the legal authority to make such decisions do not agree with you.
That’s like saying “those with legal authority see the BATFE as not infringing on the right to keep and bear arms” as your counterargument to someone claiming that the BATFE does infringe on those rights despite the second amendment.
>You posed a thought experiment in which you clearly choose on your own accord to pose as having authority never granted to you by those with the legal authority to do so.
So then you claim that Obama had no choice but to accept the nomination for president?
>This has zero relevance to the eligibility of BHO.
It does; if he knew he was ineligible, yet ran anyway and actually won, upon inauguration he would be posing as having legal authority, no?
The *best* argument I’ve heard that BHO is president regardless of his constitutional eligibility issue is that of the phrase “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;” in the 12th Amendment. However, it does not specifically nullify the requirements for President (35+ & NBC) and good argument may be made that that no person not eligible for the office should be permitted to run: that is, there should be no way to vote fro an unqualified individual.
However, this is *NOT* your argument, nor is it the argument of any of these “legal authorities.”
No.
No.
No.
No.
Good luck getting anywhere with this.
No.
No.
No.
No.
Good luck getting anywhere with this.
From the wikipedia page on thought experiments:
Given the structure of the experiment, it may or may not be possible to actually perform it, and, in the case that it is possible for it to be performed, no intention of any kind to actually perform the experiment in question may exist. The common goal of a thought experiment is to explore the potential consequences of the principle in question.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.