Presidential War Powers as an Interactive Dynamic: International Law, Domestic Law, and Practice-Based Legal Change
New York University Law Review, Vol. 92, P. 689, 2016
Duke Law School Public Law & Legal Theory Series No. 2015-53
73 Pages Posted: 16 Nov 2015 Last revised: 25 May 2017
Date Written: 2016
There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law at one level is informed by the legal context at the other level. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this two-level dynamic has played a significant role in furthering the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policy-makers seeking to shape the law on the use of force need to take better account of this dynamic.
Keywords: war powers, international law, historical practice, security council, use of force
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