Otherwise, feel free to occupy a few buildings in DC for a couple of days, but don't cry when you're forcibly evicted by the Army and hanged for treason.
And had Pence gone along with the electoral vote plan — or been caught in the insurrection and his replacement been amenable to that plan, what do you think the Joint Chiefs would have done about it?
A military coup overthrowing the regime installed by an autocoup? Or just supporting the autocoup because the Constitutional issues of the autocoup are outside of military competency?
Would an autocoup be against the Constitution? Absolutely.
So yes, I would expect the Joint Chiefs to support the actual election winner, by force if necessary.
In normal circumstances, the military doesn't make up its own mind about what is against the constitution - they defer to SCOTUS to do that.
Suppose Pence went along with Trump's plan, and refused to count the electoral votes of certain states, and declared Trump the winner. Biden surely would have challenged Pence's act in the Supreme Court. What if the conservative majority upheld Pence and declared Trump the legitimate winner?
Does the military oppose an autocoup if the Supreme Court declares it constitutional?
> So yes, I would expect the Joint Chiefs to support the actual election winner, by force if necessary.
In practice, I think it would really depend on how the other side responded. If the SCOTUS majority had endorsed a Trump-Pence autocoup as constitutional, Biden might have announced that even though he believed the majority decision was gravely wrong, he was going to submit to it for the sake of national peace-in that scenario, the military would almost surely accept the autocoup too.
Conversely, suppose Biden had announced that he rejects the SCOTUS decision as illegitimate. This is where things get a lot messier. Would the Joint Chiefs of Staff (JCS) refuse an order by President Trump to enforce the SCOTUS decision? Well, operational command authority doesn't go through the JCS, it goes from the President through SECDEF directly to the commanders of the Unified Combatant Commands - USNORTHCOM has responsibility for the domestic US, so maybe the real question is whether the commander of USNORTHCOM would obey the President.
What if, come January 20th, there are two parallel Presidential inaugurations - one of Trump (endorsed by Congressional Republicans and the SCOTUS majority) and one of Biden (endorsed by Congressional Democrats and the SCOTUS minority) - to which President would the US military owe its allegiance? I don't think it is guaranteed that the JCS would be of one mind about that question. And even if they were - what if lower-level commanders and their units disagree? One could foresee a scenario in which some units swear allegiance to one President, others to the other, yet others refuse to swear allegiance to either and insist on remaining neutral regarding the matter.
Likely in such a scenario, some state governments would recognise one President and others the other. If military units in a state recognised the opposite President to the state government, that could create a significant risk of federal-state violence - which might give military units an incentive to adopt the position of the state in which they are based.
In a scenario in which the US military has internal disagreements over who the commander-in-chief is, US military effectiveness could collapse overnight. It could be a prime opportunity for America's enemies to attack.
Would that be enough if Pence had folded, and the Supreme Court had folded? I don't know. But I suspect that, if it was obvious - and this one was - they would have gone with the obvious winner, not the political stunt.
(Digression: I think people wrong the Supreme Court. I think we'll see it with this "presidential immunity" question. I think we're going to see a 7-2 or better ruling against immunity, and we're going to see it quickly - in January. And I think we would have seen 7-2 or better against the "alternate electors", too. Even if Pence had folded, I don't think the SC would have.)
What is the military going to do? To act on their own initiative to protect the Constitution, without a lawful order to do so from either the commander-in-chief or the Courts, would be a military coup, even if just a countercoup. And then, come noon on January 20th, if Biden accepted the hypothetical SCOTUS ruling that Trump is still President, how could the military claim Biden is commander-in-chief if he himself didn't? Conversely, if Biden refuses to accept the SCOTUS ruling, now we are in the "two Presidents, the military has to decide which one to follow" scenario, and as I said, no guarantee every unit makes the same decision.
> And I think we would have seen 7-2 or better against the "alternate electors", too. Even if Pence had folded, I don't think the SC would have
We know Roberts is keen to protect the Court's reputation and impartiality, so I expect he would have sided with the liberals. Then he only needs one other justice to go along with him for Biden to win - most likely Kavanaugh; and with Roberts and Kavanaugh siding with the liberals, Barrett and Gorsuch might also, resulting in a 7-2 ruling against Trump-Pence.
However, different scenario: suppose Trump had convinced the Republican Secretary of State of one of the swing states to ignore the state-wide vote for Biden and submit Trump's slate of electors instead. Most probably, the state supreme court would strike it down; but, supposing they upheld it, I'm not sure SCOTUS would overturn them. Roberts might find appealing the position that "it is totally a matter for the state, the federal judiciary should not interfere", and the rest of the conservative justices would likely be willing to go along with it.
> I think we'll see it with this "presidential immunity" question. I think we're going to see a 7-2 or better ruling against immunity, and we're going to see it quickly - in January
I have a different prediction: SCOTUS will sit on the question for months and avoid ruling either way. Whichever way they rule could potentially have a big impact on the 2024 election, and those who disagree with the decision may accuse them of thereby interfering with it. So they'll delay, and the closer they get to November, the more they'll feel the urge to delay it further. If they delay until the November election, and Trump wins, that might give them an excuse to declare the matter moot.
To make this hypothetical even more fun, imagine this decision is reached using the same legal reasoning as in Roe. What could six conservatives unconstrained by the constitutional text do? I wonder what’s lurking in the penumbras of the tenth amendment?
To go off on a bit of a tangent-what's really "conservative" about originalism? I come from Australia, and mainstream Australian constitutional law is (on the whole) rather "originalist" by American standards [0] and yet in an Australian context that "originalism" is coded as politically neutral as opposed to "conservative" or "right-wing".
Wouldn't a truly conservative jurisprudence be something more like the natural law theorist who believes that the Constitution should be read so as to support and further adherence to natural law (as the natural law theorist understands it to be)?
Or, getting closer to your particular hypothetical, which is more conservative - originalism or "right-wing living constitutionalism"? [1]
[0] https://static1.squarespace.com/static/596ef6aec534a5c54429e...
[1] https://lawliberty.org/adrian-vermeule-unwitting-new-origina...
(By the way, McGinnis was my wife’s con law professor. I remember getting into an argument with him about the singularity in the northwestern law atrium.)
Does "the historical circumstances of our federal constitution, and the difficulty of amending it" really explain it? Australia also has a federal system, and Australia's federal constitution is also notoriously difficult to amend.
I suspect the biggest factor is actually the Bill of Rights and the 14th Amendment-once courts get used to the power to strike down legislation on the grounds of constitutionally protected rights, judges begin to feel the temptation to interpret those rights in such a way as to fulfil their own policy preferences; once those so tempted get their way, inevitable debate ensues about the propriety of their having done so.
By contrast, Australia's constitution is rather light on protections of individual rights, which limits the ability of Australian judges to feel the same temptation-one feels much more secure in striking down a law as violating the 1st Amendment, than striking down a law as violating the "implied right of political communication" (Australia's equivalent-which, as the name suggests, is not explicitly in the text, only having been read into it by the Courts, and only extends to "political" matters).
So, I think that explains how originalism became much more politically coded in the US than in Australia. However, I think the fact that it got coded as "right-wing" rather than "left-wing" may be an accident of historical circumstance. Hypothetically, suppose the Lochner era didn't end in 1937, and for decades thereafter SCOTUS continued to strike down labour regulations as violating the constitutional right to due process - one could imagine in such a scenario how originalism might become appealing to many people on the political left, whereas those on the political right might have been comparatively disinterested in it. In such an alternative timeline, "originalism" might have ended up being coded the opposite way.