A Positive Theory of the War-Powers Constitution

• Author: Jide Nzelibe
• Position: Assistant Professor of Law, Northwestern University Law School
• Pages: 04

Jide Nzelibe: Assistant Professor of Law, Northwestern University Law School. B.A. 1993, St. John's College; M.P.A. 1995, Princeton; J.D. 1998, Yale. I am grateful to John Yoo, Jack Goldsmith, Ed Swaine, Ingrid Wuerth, Martin Flaherty, William Dodge, Tim Wu, Ernest Young, Peter Spiro, Daryl Levinson, Eric Posner, Tom Ginsburg, Curtis Bradley, John McGinnis, Steven Calabresi, Stephen Presser, Tonja Jacobi, Max Schazenbach, and others for helpful comments and advice. This Article also benefited from comments at workshops at the Northwestern University Law School, Northwestern University's Center for International and Comparative Studies, the 2005 Annual Law and Economics Association meeting, the 2005 International Law Conference at University of California Boalt Hall School of Law, and the 2005 Foreign Relations Law Conference at Harvard Law School. I would also like to thank Gaurav Mathur, Brian Axelrad, Avital Even-Shoshan, Caleb Durling, and Rob Nederhood for their excellent research assistance. Page 996

Introduction

Contemporary media accounts of most extant American uses of force, including the ongoing Iraqi crisis, are often rife with speculation about when American military involvement will end.¹ From an institutional perspective, however, the bigger challenge is to understand the diverse and sometimes inconsistent roles that the political branches play in initiating and terminating wars. For instance, following the pattern set by previous administrations, President Bush, rather than Congress, took the lead in initiating the war in Iraq. But why was President Bush able to do so? Also, why do presidents sometimes seek congressional approval when they initiate certain wars but not others? What is the likelihood that the President will take the lead in ending the current American military involvement in Iraq? Are there specific circumstances that dictate when the President will take the lead in terminating a conflict and when the President will follow Congress's lead? As a practical matter, does the Constitution actually play a role in resolving any of these quandaries?

Although there is a plethora of legal scholarship on war powers, hardly any of it focuses on the actual dynamics of political-branch relations on war powers. Rather, much of the scholarship tends to advance competing normative claims about the proper division of war powers. On one side of the debate, pro-President scholars stress the importance of strength and flexibility in an executive that is not fettered in his foreign-policy goals by parochial legislators.² On the other side of the debate, pro-Congress scholars argue that a legislative check on the President's foreign-policy actions encourages democratic accountability and effective scrutiny.³ While the gulf between these two camps in the war-powers debate is quite extensive, they Page 997 both seem to be in agreement on one point: Congress is relatively impotent in war powers.⁴

What is lacking in these debates, however, is a coherent theoretical account of how the President and Congress actually interact on war-powers issues. In other words, if Congress is so weak, why would the President ever seek congressional authorization to go to war? Conversely, if the President is so powerful, why is Congress sometimes able to constrain his national security choices?

This Article attempts to fill the gap in the war-powers debate by presenting a theoretical framework that seeks to answer these questions. Employing the tools and insights of positive political theory, this Article explores the division of war-making authority between the President and Congress by focusing on the domestic audience constraints that the political branches face in the context of an imminent military buildup or troop deployment. This Article assumes that at the conflict initiation stage, the President enjoys an agenda-setting advantage over Congress because he has the power to influence the public's appetite for going to war. In other words, because the President has the exclusive ability to create and escalate an international crisis, he can effectively lock in the other branches of government to his preferred course of military action because he knows that any institutional actor that attempts to back out of the crisis will likely face punishment by a domestic audience. Thus, by precipitating "back-out" costs and a "rally-around-the-flag" effect among the domestic audience, the President can effectively constrain the scope of Congress's war powers.

Given the President's apparent dominance over the crisis-escalation agenda at the initiation of a conflict, however, why would the President ever seek Congress's approval before going to war? After all, the courts rarely intervene in separation-of-powers disputes regarding war-making authority, and members of Congress who stand in the way of the President's war- making decisions face significant electoral risks.⁵

The answer is that the President's control over the war-making agenda is neither exclusive nor complete. Indeed, although the President may dominate the "rally-around-the-flag" effect at the conflict-initiation stage, he has less control over the course and outcome of any specific war, such as the Page 998 monetary and psychological costs of the war, how long the war will last, or whether failure or stalemate can be avoided. As the President's ex-ante beliefs about the risks of an unfavorable outcome increase, the President's calculus of the risks involved in going to war without congressional authorization also change.

This Article argues that this calculus is dependent on a two-level strategic interaction in which both levels of the interaction are interdependent. At the domestic level, this Article argues that the President is likely to seek congressional authorization as a form of political insurance if he believes that there is a significant risk that the war will go wrong. In other words, when there is a significant risk of military failure or stalemate, the President has an incentive to spread the costs of decision-making among other political actors in order to prevent those actors from subsequently exploiting the President's misfortunes. At the international level, the President also has an incentive to seek congressional authorization when the outcome of the war is uncertain in order to send a costly signal to the foreign adversary about the United States' resolve to prosecute the conflict. Both of these levels are interdependent because the perception that both political branches are not in accord in the prosecution of a conflict may embolden a foreign adversary, thereby increasing the chance of military failure or stalemate. In sum, because of the significant domestic-audience costs associated with failure or stalemate in foreign military engagements (including costly but ultimately successful conflicts), the President will be less likely to initiate conflict without congressional authorization, unless he is assured of relatively rapid military success.

Correspondingly, this theoretical model suggests that Congress also has an incentive to constrain the President's war-making authority in the shadow of an unpopular military undertaking. Indeed, presidents who embark on military adventures face an acute dilemma: while the use of military force is likely to generate a favorable public response in the short run, costly or failed military adventures are also likely to generate a subsequent backlash by the domestic audience. Thus, if the President is facing possible military failure or stalemate, members of Congress, especially those of the opposing party, are usually poised to take advantage of the President's misfortunes to mobilize opposition to the President's agenda. On those occasions, members of Congress are able to deploy a variety of mechanisms to constrain the President's war-making initiatives, including denial of funds for military engagements, use of procedural devices that restrict the scope of presidential decision-making, threats to derail the President's political agenda, and occasionally the threat of impeachment. The conventional wisdom often dismisses legislative constraints, such as the War Powers Page 999 Resolution, as being useless and purely symbolic.⁶ This Article suggests that far from being a useless constraint on the President's authority, the War Powers Resolution is actually an ingenious piece of legislation that allows members of Congress to intervene selectively and strategically in...