Are congressionally authorized wars perverse?

• Author: Nzelibe, Jide

INTRODUCTION I. CONGRESSIONAL AUTHORIZATION AS AN INSTITUTIONAL CONSTRAINT ON WAR II. THE THEORETICAL FRAMEWORK FOR POLITICAL INSURANCE . A. Political Uncertainty and the Need to Diffuse Political Blame for High-Risk Conflicts B. The Second-Term President's Political Insurance Audience III. MORAL HAZARD EFFECTS A. The Mechanics of Moral Hazard in the War Powers Context B. Why the Moral Hazard Effect in Authorizing War Is Likely to Be Different from Other Legislative Contexts 1. The President's rhetorical advantage 2. The electoral saliency of the use of force 3. The asymmetric electoral costs of congressional authorization IV. DISCERNING EVIDENCE OF MORAL HAZARD IN USE OF FORCE EVENTS A. The Empirical Challenges B. Binney's Defense of Lincoln's Suspension of the Writ of Habeas Corpus C. How the President Has Profited from Congressional Authorization in the Ongoing Iraqi Occupation 1. Fragmenting the political opposition on the wisdom of the use of force 2. Raising the political costs to the opposition of switching support for the war CONCLUSION INTRODUCTION

One of the most exhaustively discussed topics in the discourse of the separation of war powers is the role of ex ante congressional authorization on the use of force. (1) Almost without exception, this literature assumes that prior congressional authorization will likely lead to a "slow down" effect in the build up to an international confrontation and thus will make the United States less likely to embark on foreign wars. To pro-Congress commentators, this effect is unquestionably benign because in a constitutional system purportedly biased against foreign military adventures, ex ante congressional authorization ensures that any decision to use force is vetted against the views of a broad range of politically accountable actors. (2) To its detractors, congressional authorization is undesirable because it clogs up the President's war-making prerogative and compromises the United States's ability to confront unpredictable foreign military threats. (3) Nonetheless both sides of the debate assume that congressional authorization will generally create a drag effect on the President's ability to use force. (4)

If the 2002-2003 foreign policy debate about whether to use force in Iraq is any guide, however, congressional authorization will often fall short of both the "slow down" and deliberative functions. Hardly less than one month after he first requested congressional authorization for the use of force in the fall of 2002, President Bush received an open-ended endorsement from Congress to use force to "defend the national security of the United States against the continuing threat posed by Iraq," and to "enforce all relevant United Nations Security Council resolutions regarding Iraq." (5) Other "make weight" efforts at congressional authorization for the use of force in the post-World War II era abound. (6) Nonetheless, various commentators, especially pro-Congress scholars, seem to hold out hope that the tide of congressional indifference will turn and Congress will become more proactive in war powers. Nonetheless, there is a gaping hole in the literature as to whether congressional authorization could plausibly serve any significant political functions for the President or the ruling party. In other words, if as Presidents routinely insist, Congress has no clear constitutional role to play in initiating conflicts, (7) why do Presidents nonetheless seem to seek out congressional resolutions before they use force? More importantly, as the political fallout over the current Iraqi occupation mounts and critics call for a concrete timetable for withdrawing troops, does the President and/or the Republican Party stand to reap any benefits from the 2002 congressional authorization?

Contrary to the received wisdom, this experimental Article advances the empirically plausible assumption that congressional authorization of the use of force might actually have a perverse effect. Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars, congressional authorization might actually do the opposite: because such authorization allows the President to spread the potential political costs of military failure or stalemate to other elected officials, it will lead the President to select into more high-risk wars than he would otherwise choose if he were acting unilaterally. In other words, since congressional authorization acts as a political "insurance policy" that partially protects the President against the possible political fallout from a military misadventure, he is likely to be more willing to engage in wars where the expected outcome is uncertain. More importantly, not only is the President likely to use congressional authorization as a hedge to prevent future political opponents from exploiting his misfortunes, he is also likely to use it to protect members of his party in Congress who are more likely to be electorally vulnerable in the absence of such authorization.

While this notion of congressional authorization as political insurance might appear puzzling, it makes sense when understood as a cheap mechanism designed to protect a vulnerable President or ruling party from the insecure political atmosphere that is likely to exist in the aftermath of a high-risk conflict. Significantly, two factors operate in tandem to ensure that the initial presidential decision to seek congressional authorization will not be particularly costly from a political perspective. First, since a member of Congress is likely to have less information than the President about the likely outcome of a high-risk conflict, he or she is likely to defer to the President's judgment that the conflict will have a positive outcome and hope to ride the President's electoral coattails as voters rally around the flag. Thus, the purported institutional benefit of deliberation by multiple voices that congressional authorization is supposed to confer is likely to be trivial, if not nonexistent. Second, since the electoral consequences of voting against a successful war are likely to be dearer than voting for a losing war, the President is relatively assured of getting a favorable vote to use force from those members of Congress who are elected from swing districts. In sum, seeking congressional authorization for the use of force becomes a tradeoff in which Presidents are willing to accept the relatively low short-term costs of involving other elected officials in the war decision-making process in exchange for long-term political security.

This Article proceeds as follows: Part I critically examines the underlying assumptions that motivate the conventional wisdom regarding the benefits of congressional participation in initiating wars. Part II lays out the theoretical framework for the political insurance model used in the rest of this Article. Recognizing the political uncertainty inherent in high-risk wars, this framework proposes that the President will often attempt to diffuse the political costs of such wars by soliciting the participation of other political actors, especially that of his political opponents. Part III explains why this quest for political insurance is likely to create a moral hazard effect which unintentionally encourages the President to engage in more high-risk conflicts than he would without congressional authorization. This Part also teases out this moral hazard effect by focusing on the public's tendency to rally around the flag at the initiation of an international conflict and by showing why congressional authorization for the use of force is unlike most forms of congressional action. Most significantly, the electoral consequences of deciding on whether to go to war seem to be both very significant and asymmetric: members of Congress who vote against winning wars stand to lose more than members of Congress who vote for losing wars. Part IV illustrates some of the empirical challenges involved in demonstrating whether the deliberative effects of congressional authorization outweigh its moral hazard effects. This Part concludes by examining two episodes involving the President's interaction with Congress to show that presidential efforts to seek political insurance are not only theoretically possible but actually do occur. The first involves Horace Binney's famous defense of Lincoln's suspension of the writ of habeas corpus during the Civil War in 1861. The second involves President Bush's interaction with Congress before and after the 2003 invasion of Iraq. A brief conclusion follows.

1. CONGRESSIONAL AUTHORIZATION AS AN INSTITUTIONAL CONSTRAINT ON WAR

   This Part explores some of the central assumptions that motivate the claim that congressional authorization of the use of force will lead to fewer high-risk wars by the United States. An argument will be made that those assumptions are logically questionable or highly contentious, raising serious questions about the purported utility of congressional authorization.

   One might reduce the purported benefits of congressional authorization of the use of force to two distinct claims: (1) it acts as a procedural constraint that will slow down the war-making process and thus make it more difficult for the United States to embark on foreign military ventures (8); and (2) it promotes the democratic marketplace of ideas by ensuring that the use of force is vetted by multiple political actors. (9) The first claim assumes that congressional authorization will act as a procedural barrier on the President's foreign policy discretion and hence limit the range of possible wars engaged in by the United States, even if it only does so marginally. Thus, even if members of Congress tend not to object strenuously to the President's foreign policy initiatives, involving them in the process should at least make the President wary of embarking on high-risk conflicts for which there is little public support...