> How can it be an illegal order when this decision makes all of the Presidents "official actions" legal?
Because "official actions" doesn't mean "every action" or "every action attempting to use presidential authority," I think it has to be an action exercising the constitutional powers of the president.
For instance: for the purposes of simplicity, lets assume all legislation authorizing the president to take military action without prior congressional approval has been repealed, and the congress has not declared war on anyone or authorized the use of military force in any circumstances. The president then orders Seal Team 6 to assassinate a waitress who spilled coffee on him, ruining his lucky suit. That would be illegal order since the president does not have constitutional authority to take such action on his own without authorization by congress and that authorization does not exist.
So I guess a hypothetical path forward would be a prosecutor choosing to pursue the charge, and the defense pleading not guilty on the basis of it being an official act. It would then be up to the prosecutor to prove that this was not an unofficial act, without using motive as a piece of evidence. Seems backwards, like proving a negative.
How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".
I consider this to be very similar to the Business Judgment Rule that protects CEOs and executives against lawsuits from shareholders for actions they did in their job, even if their actions turned out to be a mistake and lost the shareholders a bunch of money. To proceed with a lawsuit, the plaintiff has to demonstrate that the executive took unreasonable actions which directly resulted in harm to the plaintiff. Basically, their actions were out of the scope of their mandate, and they can be sued.
For example, the CEO hires their clueless spouse to a high paying job and the spouse loses the company a ton of money. That does not sound like the CEO was doing their job, but rather it sounds like they were putting their spouse ahead of the company. Here a lawsuit would certainly be allowed to go forward.
The argument is that the Constitution is the law which applies here. Specifically, the powers given to the executive to execute their role and enforce the acts of Congress.
> How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".
In my hypothetical? Because there's no congressional declaration of war or authorization of the use military force against the waitress, which can be determined by reading the journals of the house and senate.
