I hadn't realized that the Major is a reservist. That buys him a little latitude with this course of action because, until July 15 at 0800, he's technically still a civilian. The Major faces an uphill battle, in the extreme. As I mentioned in an earlier post, the grounds upon which a CO status can be claimed and approved are fairly narrow and well defined. No where in the legal definition of CO, does the statute provide for a claim on the grounds that "The President really isn't the President". I am dubious that any court will expand the defintion to include such a claim.
Lastly, while you're absolutely correct (as I pointed out in earlier posts), that an officer, NCO or enlisted uniformed service member has the right and even obligation to challenge an unlawful order, they do NOT have the right or prerogative to challenge national command authority. That is a specific term with a specific legal meaning and weight. Challenging command authority is also known as insubordination. The Major recieved deployment orders. Those orders came from the Secretary of Defense, a man who was confirmed for that job twice in the last four years. They're legal orders, of that their can be no argument.
I appreciate your service and your input as a "sea lawyer".
“Those orders came from the Secretary of Defense, a man who was confirmed for that job twice in the last four years. They’re legal orders, of that their can be no argument.”
You have a point, but I still think that the SecDef is just an extension of the POTUS. IF (big if) the directives of the SecDef flow from a (hypothetical) illegitimate POTUS, then I still think the orders are unlawful...because the source is tainted.
I will say one thing, this Major has a lot more guts than I do. The CO status is dubious. He should stick to a line of arguement that his mobilization orders are unlawful because the ultimate source of their origin lies in the office of POTUS....which the litigate challenges as constitutionally unqualified. It will be interesting to see how this plays out.
This is an interesting puzzle. IF the POTUS were to be declared constitutionally ineligible for office by the SCOTUS...then the Congress would have to remove him. IF they did such a thing, would all actions done by the POTUS become void? For instance, the appointment of General Officers by the POTUS that were confirmed by the Senate. Would they become void?