The Commander in Chief's Authority to Combat Climate Change

66 Pages Posted: 23 Apr 2015 Last revised: 16 May 2016

See all articles by Mark Nevitt

Mark Nevitt

University of Pennsylvania Law School; Georgetown University - Center on National Security and the Law

Date Written: December 25, 2015

Abstract

Climate change is the world’s greatest environmental threat. It is also increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact — in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully executed. Congress has the constitutional power to provide for the common defense, declare war, and fund the military. Yet, modern realities have given such constitutional powers different meanings: Congress has not declared war in over seventy years, and the President commands a vast standing army and a global military presence.

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of climate change will increasingly challenge existing lawful use-of-force models as the military is increasingly called upon to respond to climate-induced humanitarian crises outside of the United States. Lastly, this Article concludes by offering recommendations for both the President and Congress to address the immediate national security implications of a changing climate.

Keywords: Climate change, COP21, climate change accord, national security, constitutional law, separation of powers, environmental law, United Nations, Youngstown, fiscal law, commander in chief, executive power

JEL Classification: K00, K10, K32

Suggested Citation

Nevitt, Mark, The Commander in Chief's Authority to Combat Climate Change (December 25, 2015). 37 Cardozo Law Review 437 (2015). Available at SSRN: https://ssrn.com/abstract=2597396

Mark Nevitt (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA 19104
United States

Georgetown University - Center on National Security and the Law ( email )

600 New Jersey Avenue N.W.
Washington, DC 20001
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
123
rank
214,800
Abstract Views
1,073
PlumX