My hypothetical criminal defendant is about to be convicted of violating a federal statute. Borrowing your theory, that federal statute is unconstitutional if it was signed by a president who lacked constitutional qualifications and was thus illegitmate.
Are you saying that it would be constitutional to convict a fellow of violating an unconstitutional statute?
Or is there something you think is special about Lakin or this president?
As I understand it, the Constitutionality of the law would not be the issue. Whether the law stands would be at issue, and that would depend on whether it would go into effect without a valid POTUS signature. Most laws would, because a signature is not required; absent either a signature or a veto it goes into effect. So the law would stand because of the authority of Congress, not because of the authority of the POTUS.
In the Lakin case the DOD is actually arguing that Lakin’s orders don’t depend on the CINC at all because the Congress authorized the Sec Def to maintain the military. The trouble with that argument, though, is that Congress doesn’t have the power to single-handedly give the PARTICULAR SecDef the powers. The SecDef has to be appointed and/or retained by a valid POTUS. So though the Congress does have some say in giving authority to a SecDef, they can’t give that authority to a particular person without that cabinet position being filled at the request of someone exercising the Presidential powers according to the Constitution.
At this point, with nobody having been lawfully certified as the winner of the electoral vote, nobody could be lawfully inaugurated or lawfully assume the presidential powers. So we are without a CINC.
So yes, I think this is a special circumstance with Lakin. At least based on the understanding I have at this point.