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Notes -
I’m confused about the coup talk. Because the decision reads
Wouldn’t a coup attempt fall squarely in the non-core function of the President? The Government would then have a trivial time proving that its prosecution does not “pose dangers of intrusion on the authority and functions of the Executive Branch.” So the court would find that the coup attempt constitutes a punishable crime.
It depends on how you construe it. If the act the President is being prosecuted for is merely an official act where the President has some joint authority with Congress then plausibly that burden could be met. But if the burden is within the core of presidential authority (giving orders to the military?) then the immunity is absolute, not a rebuttable presumption.
Why the question mark? Is the order lawful, or isn't it?
The core of presidential authority over the military is not giving any sort of orders to the military. This is a conflation of the authority to command with the authority for a commander to act. The authority to command (to give orders) is distinct from the authority of a command to actually do X/Y/Z. The privileges of one do not imply the privileges of the other.
The Article II authority of the President to command the military is in the context of what Congress establishes the scope of via Article I. If it's not within the scope of what Congress establishes, it's not within the scope of Article II authorities either, because the scope of what the rules for the Government and the regulations of the military are get decided by Congress, not the President.
If the President's order is unlawful by the rules and regulations governing the military, it's outside his Article II authority to command the military and thus there is no immunity.
If the President's order is lawful, then it's immune from prosecution as a coup... but it's also not a coup by definition as a coup is an unlawful seizure of power, and for it to be a lawful order it has to be in compliance with the law.
Ah, that's an interesting fact about the President's armed forces command authority. I didn't realize that the authority wasn't actually as direct-delegated as I had thought. However, isn't it equally true that issues related to this Congress-President tension over the military have never made it to the Supreme Court and have instead mostly played out practically and politically? I know there was some drama over the Iraq-era AUMF but it didn't seem to have stopped the same kind of behavior even after repeal.
I can't speak to the specific history of attempts to take court cases against wars to the Supreme Court, but the distinction between authority to command authority to act is pretty old. It's a relatively common affair for when dealing with the American military internationally for humanitarian assistance / disaster relief efforts, because your American counterpart may have the presence and the means, but not the authority to actually help, except when they can do so for just a few days, before they have to cease and wait for broader authorities, and so on.
(This is actually pretty stereotypical in UN peacekeeper deployments in humanitarian contexts, actually- the authorities for doing anything more than self-defense are often so restricted that Commanders have no legal option but to not retaliate. This is how you get things like peacekeepers best known for just standing around and not stopping belligerents fighting around tehm.)
From what I remember, most of the drama over Iraq-era AUMF for the Americans to deploy to the United States hinged over the legal appeals, i.e. whether Congress needed to call it a war (Formalists), or if a UNSC resolution was required (Internationalists), or if this it was a derivative from the Gulf War 1 authorization and cease fire (since Saddam had by this point repeatedly violated the cease fire, if the previous authorizations were still valid). The AUMF directly references the later, as well as other basis for action, but the AUMF itself was what Bush relied on for the authorization to act.
I dug this up which seems to suggest that post-repeal Biden has resorted to more classic Article II defense for anti-Houthi actions instead of Iraq AUMFs, which is interesting. Previously, I think most drone strikes and similar actions were all authorized using various AUMFs in every post-Bush administration because they were deliberately written to be very broad. Maybe I have this wrong but I think Congress has repealed all but maybe one of the AUMFs?
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