No. of Recommendations: 11
If Biden gives an order that he is prohibited from giving under the Constitution, it's almost certainly not an official act.
So where, exactly, does it say in the constitution there are limits on a President's ability to give orders to the military? Where is the concept of a "lawful order"? Paraphrasing Nixon, if the President orders it, it's lawful.
Before you go citing chapter and verse, that's not my point here. The point is to raise the question and then tie it up in courts as long as possible using every conceivable argument to every tiny step along the way. You do that until the answer to the original question no longer matters.
So if Biden orders Trump to Gitmo without due process, the courts can (and would) order him to release Trump immediately, either through an injunction or a writ of habeus corpus - regardless of whether immunity attached to that act.
Putting my argument into practice here, Biden could fight the order to release Trump. Assuming it would be a federal trial court that would issued the order, you start by questioning their jurisdiction. Maybe claim it's an act of war against the US and not subject to ordinary civilian criminal proceedings, but a military proceeding. Again, it doesn't matter if it's something fairly settled, you make the argument anyway just to cause delay. When the appeal goes against you, appeal to the supreme court. When Biden loses there, you question the order itself - the court erred in their injunction or writ. This continues at every step of the way, and in the mean time you go on a big PR campaign claiming the courts are biased and crooked and aren't allowing the President to do his job protecting the American people. Most importantly, the status quo would stay - Trump would remain in Gitmo.
Obviously, this is all a hypothetical. But the idea that you just roll over because the court ordered something is what has come into question. The lesson Trump has taught all of us is that you don't roll over, no matter what the court says. You merely continue arguing over every little bit you can find to argue about until everyone tires of it - or runs out of money to continue the fight.
--Peter
--Peter
