Presidential War Powers, the Take Care Clause, and Article 2(4) of the U.N. Charter

48 Pages Posted: 27 Jan 2019 Last revised: 6 Mar 2019

Date Written: January 14, 2019

Abstract

In directing the use of military force without prior congressional authorization, Presidents invoke their authority as “Commander in Chief of the Army and Navy of the United States” under Article II, Section 2 of the Constitution. Examples of such uses of force include the missile strikes directed by President Trump against the Syrian government in 2017 and 2018.

Yet Article II of the Constitution is not only a source of presidential war powers, it also imposes constraints on those same powers. Article II, Section 3 requires that the President “Take Care that the Laws be faithfully executed.” The “Laws” encompass treaties, including the U.N. Charter, which sharply restricts the use of force by States.

This Article argues that by virtue of the Take Care Clause, Article 2(4) of the U.N. Charter binds the President as a matter of domestic law. In advancing this claim, this Article relies primarily upon the arguments of the Executive Branch itself in three superficially distinct, though interrelated domains. By synthesizing Executive Branch views on war powers, the Take Care Clause, and Article 2(4), this Article shows how Presidential arguments advancing claims of authority also delineate the scope of the corresponding constitutional duties.

The conclusion that Article 2(4) is a “Law” has significant implications for the allocation of war powers. By virtue of the later-in-time rule, it is Congress, not the President that possesses the authority to “override” this treaty provision.

Keywords: War Powers, U.N. Charter, Jus Ad Bellum, Use of Force, Constitutional Law

Suggested Citation

Finucane, Brian, Presidential War Powers, the Take Care Clause, and Article 2(4) of the U.N. Charter (January 14, 2019). Cornell Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3315698 or http://dx.doi.org/10.2139/ssrn.3315698

Brian Finucane (Contact Author)

U.S. Department of State ( email )

Register to save articles to
your library

Register

Paper statistics

Downloads
106
rank
247,902
Abstract Views
720
PlumX Metrics