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Print 105 Cornell Law Review Issue 7


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

Brian Finucane

The author serves as an attorney-adviser at the U.S. Department of State. He prepared this Article in his personal capacity, and the views expressed here do not necessarily represent the views of the Department of State or the U.S. government. 

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19 Nov 2020

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 substantiating this proposition, 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 Take Care Clause gives and takes at once. If the President is not constrained by treaties, the President also lacks the power to execute them. 

I rebut a 1989 Office of Legal Counsel memorandum by now-Attorney General William Barr that concluded that the President may unilaterally “override” Article 2(4) because the treaty provision is non-self-executing and because the use of force is a “political question.” I explain that, though the political question and non-self-execution doctrines may be relevant to the justiciability of Article 2(4) in the courts, neither is dis-positive as to the status of Article 2(4) as a “Law” that the President is obligated to faithfully execute. The conclusion that Article 2(4) is a “Law” has significant implications for the allocation of war powers. Contrary to Barr’s 1989 memo, by virtue of the last-in-time rule, it is Congress—not the President—that possesses the authority to “override” this treaty provision.

To read more, click here: Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter.