Is Donald Trump still president because of Title 10 and Executive Order 13912? No, that's not true: A constitutional law expert told Lead Stories that Title 10 and an executive order do not override the U.S. Constitution, which states that the president is elected by the Electoral College.
The claim appeared in a video published on Rumble on May 30, 2023, titled "Derek Johnson 10 minute breakdown of Title 10 and Executive Order 13912" (archived here). The narrator of the video, country music singer Derek Johnson, makes the claim clearly at the 8:25 mark:
Donald John Trump is still your commander in chief by laws and orders, military laws first, which the military justice act clarified.
Users on social media only saw this title, description and thumbnail:
You cannot support or thank any soldier or veteran for our service if you say this isn't happening. The only President who's Federalized the Reserve Components (National Guard) to Active-Duty is Donal
D. Theodore Rave, a constitutional law expert and professor at the University of Texas School of Law, told Lead Stories via email on May 31, 2023, that Title 10 does not override the Constitution and neither do executive orders:
Trump is not president or commander in chief anymore, no matter what executive orders he signed. Executive orders cannot override the Constitution.
Title 10 provides the guidelines of the role of armed forces in the United States Code, which is the "codification by subject matter of the general and permanent laws of the United States." The Cornell Law School Legal Information Institute describes Title 10 code 12406:
(1)the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2)there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3)the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
Executive Order 13912, titled, "National Emergency Authority To Order the Selected Reserve and Certain Members of the Individual Ready Reserve of the Armed Forces to Active Duty," was signed by then-President Trump on March 27, 2020. It declared a "National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak." The executive order gave the departments of Defense and Homeland Security the authority to activate the National Guard and reservists but was not an order to do so, as the executive order states.
The process of electing a U.S. president is clearly defined in the U.S. Constitution. The Electoral College is the formal body that elects the president and vice president. Executive orders and U.S. codes do not override Electoral College results. The official USAGov website spells out the process:
How does the Electoral College process work?
- After you cast your ballot for president, your vote goes to a statewide tally. In 48 states and Washington, D.C., the winner gets all the electoral votes for that state. Maine and Nebraska assign their electors using a proportional system.
- A candidate needs the vote of at least 270 electors--more than half of all electors--to win the presidential election.
- In most cases, a projected winner is announced on election night in November after you vote. But the actual Electoral College vote takes place in mid-December when the electors meet in their states. ... [The votes are then formally counted on January 6 during a joint session of Congress.]
How to change the Electoral College
The Electoral College process is in the U.S. Constitution. It would take a constitutional amendment to change the process.
According to the U.S. Constitution's 20th Amendment, a president's four-year term ends at noon EST on January 20; the term of the next president then begins at 12:01 p.m. EST on January 20. Joe Biden became president on January 20, 2021.
Beginning at the 6:23 mark in the video, Johnson claims that Biden's three-cannon salute the day of his inauguration was actually traditional for a funeral, which meant that Trump was still president. This is also false; Lead Stories previously debunked this claim here. Col. Rob Phillips, communication director, Joint Force Headquarters - National Capital Region, previously told Lead Stories how the 21-gun salute was performed at Arlington National Cemetery on January 20, 2021:
The President Salute Battery, 3d U.S. Infantry Regiment (The Old Guard) rendered honors to President Biden announcing his arrival to Arlington National Cemetery with a 21-gun salute. The fire cannon salute is conducted with two cannons alternating their fire with a nine second interval between each round. The Old Guard has a cannon on reserve in case of a misfire.
"For security and public safety, the cannons were not fired at the U.S. Capitol at the request of the Joint Congressional Committee on Inaugural Ceremonies," Phillips said.
Other Lead Stories fact checks related to Electoral College claims can be found here.
Other Lead Stories fact checks related to 2020 election claims can be found here.