Document Type

Article

Disciplines

International Law

Abstract

This Essay argues that by touting international-law rationales as justifying U.S. military action, the Executive Branch is setting up what has the potential to be a robust check on its powers beyond the three branches of the U.S. government: the international legal system. It is not the first to address whether Article 51 realistically constrains presidential uses of military force." Scholars have considered (and agreed) that international law can "indicate[] constraint." Yet others have considered the importance of public explanations when engaging in international law activity." And, there is a body of scholarly literature addressing when the action itselfis covert or secretive (rather than the post-hoc justification). In the context of existing scholarship on similar and related issues, this Essay takes on a very narrow question: whether the authoring of Article 51 letters serves as a real check on Executive Branch exercises of military force, in light of the more extreme uses of military force in recent months.

In Part I, this Essay describes how U.S. presidents, including but not limited to President Trump, have relied on Article 51 to justify expansive military activities abroad. Part II highlights some of the imperfections of Article 51 as an international legal tool. And Part III argues that even if Article 51 can be a flimsy justification for potentially egregious violations of international law and domestic U.S. law, the attempt to provide a public justification is better than no justification at all. In the face of valid counterarguments, addressed in Part III, this Essay contends that a public justification is a positive development because it supports rule-of-law norms at home and abroad. In this way, Article 51 can serve as another check on the Executive Branch.

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