Bring Back the Draft?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Bring Back the Draft?

Neal Devins

Introduction

By contrasting the institutional incentives of Congress, of the President, and of the courts on warmaking issues, I will argue that recent calls to "bring back the draft"[1] should be taken seriously. I will build my argument around three claims.

First, on warmaking issues, courts lack the institutional incentives to contradict the political process and corresponding cultural norms. Unless Congress and the White House are at logger heads with each other (so that the political process cannot resolve an inter-branch dispute), courts will steer clear of warmaking questions. Courts, instead, will declare the issue nonjusticiable or validate elected-government decisionmaking. Consequently, the question of whether courts should resolve war powers disputes is--practically speaking--somewhat beside the point.[2] The relevant question, instead, is whether the existing balance of powers between Congress and the President is sensible.

Second, with virtually no constituent pressure beating against it, Congress has little incentive to challenge the President on warmaking. In sharp contrast, Presidents have strong incentives to pursue military initiatives. As such, Presidents now dominate war powers decisionmaking. Needless to say, this arrangement makes sense to those who believe in presidential control of warmaking. However, for those (like me) who think that no branch of government should dominate warmaking, the current situation is in need of repair.

Third, serious attention should be paid to reform proposals that make the American people and, with them, Congress more interested in presidential warmaking. In particular, constituent pressure is needed to prod lawmakers to stand up for Congress' institutional prerogatives. On warmaking, proposals to "bring back the draft" are intended to accomplish this feat. Though these proposals may not be sound military policy, the debate over whether such a mechanism is needed to maintain our system of checks and balances is certainly salutary.

I. The Competing Incentives of Congress and of the President

Why is it that Presidents have the tools and incentives to launch military strikes? Why does the modern Congress seem unwilling to give teeth to the constitutional mandate that it--not the President--"declare war"? More to the point, why does Congress refuse to use its available tools (appropriations, oversight, and threat of impeachment, among others) to check presidential warmaking?

To start, "the rise (and success) of the modern Presidency is the story of the gradual expansion of executive power, seized or ceded to it often in times of crisis."[3] Presidential power, in other words, is much more than the exercise of constitutionally enumerated powers and the power to persuade.[4] Thanks to the singularity of the office, Presidents are well-positioned to advance their interests before Congress, the nation, and the world. Critics of the modern day Presidency, including Theodore Lowi and Jeffrey Tullis, put it this way: "[R]egularly go[ing] over the heads of Congress to the people at large, the powers of the American people have been invested in a single office, making [it] the most powerful office in the world."[5] Even defenders of presidential power recognize that Presidents are motivated to seek power and have the tools to accomplish the task. The opportunities for presidential imperialism are too numerous to count, according to Terry Moe and William Howell, because, when presidents feel it is in their political interests, they can put whatever decisions they like to strategic use, both in gaining policy advantage and in pushing out the boundaries of their power.[6]

When Presidents act, moreover, it is up to the other branches to respond. Witness, for example, executive orders: between 1973 and 1998, Presidents issued roughly 1,000 executive orders. Only thirty-seven of these orders were challenged in Congress. More striking, only three of these challenges resulted in legislation.[7] Presidents thus often win by default, either because Congress chooses to not respond or because its response is ineffective. Furthermore, by end-running the burdensome and ofttimes unsuccessful strategy of seeking legislative authorization, unilateral presidential action expands the institutional powers and prerogatives of the Presidency. In other words, the President's personal interests and the Presidency's institutional interests are often one and the same.

Presidents, of course, sometimes need Congress to enact legislation. In pursuing their health care and faith-based initiatives, Presidents Bill Clinton and George W. Bush had little choice but to turn to Congress. Here, Congress had the upper hand. Rather than doing battle with the President on his own field (enacting legislation that is subject to a presidential veto), Congress forced the President to overcome the burden of inertia to cajole Congress into action. As such, modern-day Presidents often advance their agenda through unilateral action, not legislative strategies.[8]

Unlike the Presidency, the individual and institutional interests of members of Congress are often in conflict with one another. Though each of Congress' 535 members has some stake in Congress as an institution, parochial interests will overwhelm this collective good. In particular, members of Congress need to be reelected to advance their (and their constituents') interests. For this reason, lawmakers are trapped in a prisoners' dilemma: all might benefit if they could cooperate in defending or advancing Congress' power, but each has a strong incentive to free ride in favor of the local constituency.[9]

Nowhere is the gap between legislative and presidential incentives more stark than war powers. For its part, the modern Congress has very little incentive to play a leadership role in warmaking. As I will detail in Part III, one byproduct of an all-volunteer army is that lawmakers feel little constituent or public pressure to reign in presidential warmaking. Correspondingly, fewer and fewer lawmakers have served in the military.[10] With little sense of personal connection to or stake in military matters, lawmakers prefer to focus their efforts on constituent services and other matters helpful to their efforts to retain their seats. In addition, the growing cost of running for office means that legislators have less time to tend to their institutional and constitutional duties.

Presidents, in contrast, often are motivated to seek warmaking power. Presidents achieve status--fame if you will--by leading the nation into battle.[11] Correspondingly, by launching military strikes, a rally-around-the-President phenomenon guarantees a surge of ten percentage points or more in the president's approval ratings.[12] With military technology now enabling Presidents to wage war with few casualties, Presidents have strong incentives to launch such strikes.[13] Also, with Congress playing a diminishing role in war powers, expectations have developed about the President's constitutional powers and responsibilities. Presidents, moreover, fuel these expectations by using the presidential "bully pulpit" to speak the nation's voice on warmaking.

As these expectations of presidential dominance have become entrenched, most members of Congress "find it more convenient to acquiesce and avoid criticism that they have obstructed a necessary mission."[14] Consider, for example, Congress' response to President Clinton's decision to use military force in Bosnia. Senate majority leader Bob Dole stated: "[I]n my view the President has the authority and the power under the Constitution to do what he feels should be done regardless of what Congress does."[15] Likewise, minority leader George Mitchell opposed legislation requiring the president to seek congressional authorization prior to military action in Bosnia because such "prior restraints . . . plainly violate the Constitution."[16] By suggesting that Congress has no role to play, lawmakers now seem more interested in protecting the executive branch than their own institution.

More striking, today's Congress almost always complies with presidential requests for warmaking authority. In the aftermath of the September 11 terrorist attacks, Congress has clearly shown that it will place few limits on presidential warmaking. Outside of purely constituent-driven issues (whether their states and districts are "getting enough money for weapons-building factories or their need for more homeland security money"),[17]lawmakers have largely stood on the sidelines. For example, when asking Congress for authority to attack Iraq, President George W. Bush made clear that he could go it alone; the only reason he sought congressional involvement was to show the United Nations that he was expressing the views of the American people. Rather than express outrage at this slighting of their authority, Democratic leaders largely echoed the President. Senate majority leader Thomas Daschle spoke of the need for "America to speak with one voice" and Senate Foreign Relations Committee chair Joseph Biden said that broad presidential authority to act preemptively was necessitated by the "speed and stealth with which an outlaw state or terrorists could use weapons of mass destruction."[18]

Congress, moreover, has placed little pressure on the Bush administration's handling of Iraq (at least through April 2004). In June 2003, lawmakers refused to launch an investigation into whether the Bush administration manipulated prewar intelligence on the presence of weapons of mass destruction in Iraq.[19] In November 2003, Congress agreed to an $88 billion supplemental appropriation to support the war effort.[20] More striking, mounting casualties in Iraq have not prompted lawmakers to use their appropriations or oversight powers to meaningfully cabin Bush administration initiatives.[21] While...