Rational war and constitutional design.

• Author: Nzelibe, Jide
• Position: Symposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. FUNCTIONAL PURPOSES OF THE WARMAKING SYSTEM II. THE DOMESTIC LEVEL A. Political Accountability B. Accuracy III. THE INTERNATIONAL LEVEL A. Informational Advantages and the Democratic Peace B. Legislative Authorization as Costly Signaling C. Regime Types and the Varying Value of Costly Signals D. The Dangers of Judicial Intervention IV. RESPONSE TO DEAN KOH CONCLUSION INTRODUCTION

The issue of war powers, more specifically the question of whether the President or Congress holds the power to initiate military hostilities, remains one of the most controversial and unsettled areas of constitutional law. American Presidents have long claimed the authority to initiate military hostilities unilaterally, and since at least the Korean War, they have taken the nation into war without congressional authorization beyond legislative funding. In 1973, Congress enacted a War Powers Resolution that sought to place a sixty-day limit on military intervention, but Congress has never enforced it. Remaining silent, the Supreme Court has not taken a case since the Civil War-era Prize Cases (1) on whether a war waged without congressional authorization violates the Constitution.

And in yet another re-run of Vietnam, the question of war powers has returned as a focus in the argument over the Iraq War. Both public supporters and critics of the intervention have argued that Congress should have declared war against Iraq. (2) Nonetheless, such arguments (which did not appear in any significant way before the March 2003 invasion) did not appear to hold any sway with Congress, which authorized the attack by statute but not by a declaration of war, (3) nor with the federal courts, which turned away a challenge to the constitutionality of the Iraq War. (4)

Division over the extent of the President's and Congress's war powers is mirrored, if not sharpened, in the legal academy. Prominent academics, such as John Hart Ely, Harold Koh, Louis Fisher, Louis Henkin, and Michael Glennon, believe that Congress must authorize all uses of force abroad (the "Congress-first approach"), except in self-defense. (5) A minority, including Judge Robert Bork, Eugene Rostow, and John Yoo, has countered that the Constitution allows the President to order the initiation of military hostilities unilaterally (the "President-first" approach). (6) Nevertheless, both sides in the debate measure current practice against the constitutional text or original understanding of the document. This Essay addresses the debate from a different perspective, one beyond the formal textual and historical sources of constitutional law. Instead of defending the legitimacy of or justification for a constitutional reading, we pursue a comparative institutional analysis of the relationship between the President and Congress. We ask the question: What war powers system would enhance the effectiveness of the United States in malting decisions about war and peace?

In Part I, we discuss the functional purposes for a warmaking system. We explore the Congress-first position's implicit normative commitments and ask whether they are met in practice. Part II then examines the Congress-first and President-first approaches along two domestic aspects--political accountability and accuracy--and finds that the Congress-first approach has no clear advantages in either.

Part III turns from the domestic to the international. It argues that, under certain circumstances, the international bargaining position of the United States is improved if the President receives ex ante authorization for warmaking from Congress. Our analysis draws on what is thought to be the one empirical truth about international conflict: Democracies do not go to war with each other. (7) Until recently, scholars have devoted little attention to how the nature of adversaries' regimes--whether democratic or nondemocractic--might affect the optimal allocation of war powers. This Part uses the political science literature on the democratic peace to develop a functional argument for a more flexible allocation of war powers. The regime type of a potential opponent may determine whether adopting a Congress-first or President-first approach to war powers is more effective. We argue that when the United States' foreign adversary is a democracy, prior legislative authorization can serve an important signaling function. That signal, however, is likely to be diluted when the adversary is a nondemocractic state or terrorist organization. Given the political judgments inherent in deciding when such a signal might be appropriate, we conclude that the courts should have no role in the process; instead, the decision to seek congressional authorization for the use of force should rest with the President.

1. FUNCTIONAL PURPOSES OF THE WARMAKING SYSTEM

   This Part briefly reviews some of the normative claims that underpin the competing war powers theories and asks whether they align with the purposes that war has served in American history. In particular, it asks whether the Congress-first model for deciding on war has produced the tangible benefits predicted by its proponents.

   Contemporary textual and historical arguments about war powers have reached a stalemate. While some Congress-first scholars believe that the intent of the Framers is clear, (8) opponents of that position argue that the constitutional text and structure do not bear out that understanding. (9) If the Constitution does not unequivocally demand a specific warmaking process, or if the ambiguity in the interpretive sources prevents any definitive conclusions, then functional considerations may be particularly useful in determining the superior system.

   One perceived advantage of the Congress-first approach is that it slows down the warmaking process, which in turn prevents imprudent wars that may be too costly and ineffective. As Ely stated, "[T] he point was not to exclude the executive from the decision--if the president's not on board we're not going to have much of a war--but rather to 'clog' the road to combat by requiring the concurrence of a number of people of various points of view." (10) Several younger scholars, including Michael Ramsey, Jane Stromseth, and William Treanor, have provided more elaborate defenses of this functional approach by delving further into the Framing history. (11) This approach is appealing because it bears close similarity to the process that governs the enactment of ordinary legislation. It promises the deliberation, consensus, and clarity prized by the new legal process approaches that recently have influenced thinking about legislation and administrative law. (12)

   But before accepting this seemingly attractive vision, we should ask whether the Congress-first system lives up to its promises. In other words, has requiring congressional ex ante approval for foreign wars produced less war, better decision-malting, or greater consensus? A cursory review of previous American wars does not suggest that requiring congressional authorization before the use of force invariably produces better decision-making. For example, the declarations of war initiating the Mexican-American and Spanish-American Wars did not result from extensive deliberation or necessarily result in good policy. (13) Although both wars benefited the United States by expanding the nation's territory and enhancing its presence on the world stage, (14) they remained offensive wars of conquest. Nor is it clear that congressional participation has resulted in greater consensus. Congress approved both the Vietnam and the 2003 Iraq Wars, but both have produced sharp divisions in American domestic politics.

   Much of the war powers literature focuses on the concern that the United States might erroneously enter a war in which the expected costs outweigh the expected benefits. Statisticians usually label such errors of commission Type I errors. However, the other side of the coin is just as important. Errors of omission, when the United States does not enter a conflict whose expected benefits outweigh the costs, are called Type II errors and may be just as undesirable as Type I errors. (15) But scholars rarely, if ever, ask whether requiring congressional ex ante approval for foreign wars could increase the likelihood of Type II errors. Legislative control could prevent the United States from entering into wars that would advance its foreign policy or national security objectives. The clearest example is World War II. During the inter-war period, Congress enacted several statutes designed to prevent the United States from entering into the wars in Europe and Asia. In 1940 and 1941, President Franklin D. Roosevelt recognized that America's security would be threatened by German control of Europe, and he and his advisers gradually attempted to bring the United States to the assistance of Great Britain and the Soviet Union. (16) Nonetheless, congressional resistance delayed entry into the war and prevented Roosevelt from doing anything more than supplying arms and loans to the Allies and providing partial protection for convoys to Great Britain. In hindsight, most would agree that America's earlier entry into World War II would have benefited both the United States and the world.

   We must compare the impact of Type I and Type II errors under a Congress-first system with the results of a President-first approach. Presidents may cause the United States to begin wars that appear unnecessary or unwise initially; however, some of these conflicts may look better in hindsight. The Cold War experience, which provides the best examples of major military hostilities conducted without ex ante congressional authorization, does not stand as an unambiguous example of how legislative control promotes institutional deliberation and results in better conflict selection. Many of the conflicts, such as Panama and Grenada, ended successfully for the United States. To be sure...