Publication Date

2019

Journal

Harvard National Security Journal

Abstract

In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned understandings of how and why legal systems function. While the reality that law does not operate as an on/off switch has long been accepted among legal scholars when it comes to ordinary law—all legal rules face “the fact of violation,” uncertainty in meaning, and a complex array of human motives and incentives for acting—these phenomena seem yet to have informed our understanding of law’s role in shaping decision-making surrounding state uses of force. This Article argues that accounting for these features of law is especially relevant to the study of constitutional and international regulations of state use of force. Applying a more contemporary understanding of how law works, the Article illustrates how shifting our methodological approach away from compliance-centered metrics of legal constraint may require reinterpreting the conventional set of examples we have long assumed we understood. At a minimum, it requires redesigning our approach to the empirical study of executive branch decision-making. And it suggests we may need to rethink what mechanisms may most effectively constrain the “imperial presidency” in the years ahead.

Volume

10

First Page

368

Publisher

Harvard Law School

Keywords

Imperial presidency, Presidential power, Executive power, Constitutional law, Use of force, War powers, International law, UN Charter, Legal constraint, Empirical study, HLA Hart

Disciplines

Constitutional Law | Jurisprudence | Legal History | Legislation

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