In directing the use of military force without prior congressional authorization, Presidents invoke their authority as \u201cCommander in Chief of the Army and Navy of the United States\u201d 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. <\/p>\n\n\n\n
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 \u201ctake Care that the Laws be faithfully executed.\u201d The \u201cLaws\u201d encompass treaties, including the U.N. Charter, which sharply restricts the use of force by States. <\/p>\n\n\n\n
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. <\/p>\n\n\n\n
I rebut a 1989 Office of Legal Counsel memorandum by now-Attorney General William Barr that concluded that the President may unilaterally \u201coverride\u201d Article 2(4) because the treaty provision is non-self-executing and because the use of force is a \u201cpolitical question.\u201d 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 \u201cLaw\u201d that the President is obligated to faithfully execute. The conclusion that Article 2(4) is a \u201cLaw\u201d has significant implications for the allocation of war powers. Contrary to Barr\u2019s 1989 memo, by virtue of the last-in-time rule, it is Congress\u2014not the President\u2014that possesses the authority to \u201coverride\u201d this treaty provision.<\/p>\n\n\n\n