This Office of Legal Counsel test for unilateral uses of force provides no meaningful constraint on presidential power.
Curtis Bradley is the William Van Alstyne Professor of Law and Professor of Public Policy Studies at Duke University. He joined the Duke law faculty in 2005, after teaching at the University of Virginia and University of Colorado law schools. His courses include International Law, Foreign Relations Law, and Federal Courts. He was the founding co-director of Duke Law School’s Center for International and Comparative Law and is currently a co-Editor-in-Chief of the American Journal of International Law. Recently, he served as a Reporter on the American Law Institute’s Restatement (Fourth) project on The Foreign Relations Law of the United States.
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A forthcoming draft paper in the Harvard Law Review takes up the question.
In light of President Trump's repeated disparagement of the judiciary and unfounded criticism of the news media for under-reporting terrorist attacks, it is important to start thinking now about how to defend these institutions' future checking power.
Affirming a lower court decision, the UK Supreme Court has held that, despite the referendum in June 2016 calling for withdrawal from the European Union, Britain cannot withdraw from the Union without parliamentary approval.
Abrogate only Saudi Arabia's immunity.
One claim that is being made about President Obama’s decision to seek congressional authorization for military action in Syria is that it is likely to weaken the authority of the presidency with respect to the use of force. Peter Spiro contends, for example, that Obama’s action is “a watershed in the modern history of war power” that may end up making congressional pre-authorization a necessary condition for even small-scale military operations.