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Since World War II, it has become increasingly common practice for presidents to use non-defensive military force abroad without obtaining congressional pre-approval, thereby leaving Congress with no meaningful role in the decision. This modern practice is clearly at odds with the Constitution's text and original meaning. A wealth of scholarly commentary concludes that the Constitution grants Congress alone the power to authorize non-defensive military force. Although not expressly mentioned in the Constitution, ample commentary also concludes that a president has inherent constitutional power only to defend the nation from an actual or impending attack. This Essay rejects the notion that a president's independent constitutional authority to use non-defensive military force is, as a matter of constitutional law, left solely to the routine political give and take of the elected branches. In a republic based upon fundamental individual rights to life, liberty, and property—and of a limited central government constrained by fundamental law—legislative acts and well-accepted principles of necessity must govern a president's legal authority to invade individual rights through the use of military force. A more complete contextual and structural reading of the Constitution's text, as well as early government practice and relevant Supreme Court precedent, demonstrate that the Framers and ratifiers of the Constitution believed these basic, rule-of-law and separation-of-powers principles to be etched into the Constitution's original design. This Essay briefly reviews the current situation and comprehensively surveys the Constitution's allocation of war- and military-related powers to demonstrate Congress's extensive authority over war and the nation's armed forces. This review strongly confirms the view that the Constitution requires Congress to affirmatively authorize all non-defensive military force and provides Congress with several powers to check a president's use and command of the military. It then briefly posits some of the reasons the relevant constitutional norms have eroded, clarifies why aberrant past practice cannot amend the Constitution's separation of war powers, and explains why Congress must reestablish its authority, briefly suggesting two ways that it may do so.

Waterboarding and "much worse," torture, and "tak[ing] out" the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the "law of war." Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to comply with the law of war in its disciplinary code, the Uniform Code of Military Justice (UCMJ). It clarifies how Article 18 of the UCMJ empowers military criminal courts, known as courts-martial, to try and punish not only conduct denominated a "war crime" by international law but also any other conduct for which the law of war permits punishment by military tribunal. Punishable conduct under Article 18 includes any law of war violation that entails or results in a criminal offense under the UCMJ. Put differently, this Article clarifies why reasonable compliance with the *814 law of war is necessary to justify war measures that are otherwise common crimes such as murder, maiming, and assault, that are defined and made punishable by the UCMJ. This Article then explains why this execution of the law of war in the UCMJ limits a President's authority as Commander-in-Chief: a President does not possess constitutional power to override congressional regulation of the military, particularly in matters of military discipline. So long as the law of war component of Article 18 remains unchanged, no President may order or authorize war crimes or most other law of war violations that entail or result in a UCMJ offense.

After over fourteen years of continuous armed conflict, neither courts nor commentators are closer to a common understanding of how, or the extent to which, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates and defends the first normative theory regarding the general relationship of customary international law to the U.S. legal system that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law differs in cases involving war and other exercises of "external" sovereign powers from cases involving "internal" powers of domestic governance. In cases involving the exercise of external sovereignty, including sovereign powers of war, the Supreme Court traditionally applied customary international law as an exogenous, nonfederal rule of decision. The Court articulated this "external" choice-of-law framework in Paquete Habana: "[W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." The Article then examines the Court's wartime and related jurisprudence in order to more thoroughly explicate the Paquete Habana framework in the context of armed conflicts, demonstrating the Court's apparent understanding of the relationship of international laws of war to the Constitution and laws of the United States. This analysis not only confirms the Article's general customary international law thesis, but also clarifies important implications of the Court's use of international law as an exogenous rule of decision, importantly, that such rules need not be consistent with the Constitution's separation of domestic powers or the Bill of Rights. Given the range of issues this Article clarifies, it should influence academic and judicial discourse regarding the relationship of customary international to U.S. law, particularly in cases involving the armed conflicts of the United States.