Why was Congressional authorization necessary to order Lakin to report to his brigade commander's office or for duty with the 101st Airborne in Kentucky? Would congressional authorization be needed to order a private to empty the trash can?
Only Congress has the authority to declare war against foreign powers. In this instance Congress authorized only “the President” to use force against those who perpetrated or support the terrorist attacks of 9-11. All force that is used is at the discretion of whoever is acting as President at the time.
The only person the Constitution allows to “act as President” at this time is potentially Joe Biden. Joe Biden did not approve the use of force. In fact, he was against the troop increase. The only reason Lakin was given these orders was because somebody who is not allowed by the Constitution to exercise the presidential powers pretended that he was authorized when in reality the Constitution and SJ Res 23 could only allow Joe Biden.
And that’s what the Hollister case is about, as I understand it. Hollister asked the court to judge between Joe Biden and Obama, as to which has the authority to act as CINC, because Biden’s decision regarding the use of force has already differed from Obama’s.
I only found out yesterday that the Hollister case was denied because Robertson claimed that not enough was at stake. To make the challenge Hollister made, $500 of property or obligations had to be at stake. Robertson ignored the fact that obligations count in that tally, which means that Hollister’s salary if called to duty on Ready Reserve would make a large enough claim.
Lakin’s brigade commanders clearly acted beyond their authority if Joe Biden is the only person the Constitution allows to “act as President”. That issue is critical to the lawfulness of the orders. And we already know that Obama didn’t “qualify” by Jan 20, 2009 because he doesn’t even have a legally valid US birth certificate. The Constitution thus says the VP elect must “act as President”. That’s Joe Biden (if the electoral certification is considered lawful).