The power to threaten war.

• Author: Waxman, Matthew C.
• Position: Introduction through I. Constitutional War Powers and Threats of Force, p. 1626-1662

ARTICLE CONTENTS INTRODUCTION I. CONSTITUTIONAL WAR POWERS AND THREATS OF FORCE A. War Powers Doctrine and Debates B. Threats of Force and Constitutional Powers C. Threats of Force and U.S. Grand Strategy D. The Disconnect Between Constitutional Discourse and Strategy 1. Lawyers' Misframing 2. Lawyers' Selection Problems 3. Lawyers' Mis-Assessment II. DEMOCRATIC CHECKS ON THREATENED FORCE A. Democratic Constraints on the Power to Threaten Force B. Democratic Institutions and the Credibility of Threats C. Legal Reform and Strategies of Threatened Force III. CONSTITUTIONAL WAR POWERS AND AMERICAN GRAND STRATEGY A. Threats of War and Presidential Powers in Historical and Strategic Context B. Reframing "War Powers" Scholarship C. Threats, Grand Strategy, and Future Executive-Congressional Balances CONCLUSION INTRODUCTION

In September 2012, at Israeli Prime Minister Benjamin Netanyahu's prodding, American policymakers and commentators argued intensely about whether the President of the United States should draw a "red line" for Iranian leaders-a threshold of nuclear weapon development the crossing of which would trigger a U.S. military response. (1) It is easy to imagine that the actual launching of military attacks against Iran would generate intense scrutiny and argument of constitutional issues, most notably whether the President could take such action without congressional authorization. Were military strikes to carry on for months, it is also easy to imagine significant legal discussion of whether the President could continue them, in light of the War Powers Resolution's sixty-day limit on military engagements without express congressional approval. (2) Nobody seriously questioned, though, that as a constitutional matter, the President could unilaterally draw the red line threatening them. (3)

The implicit consensus that the President is constitutionally empowered to threaten military force in this situation is, in my view, correct. But the consensus presents an anomaly. Proponents of drawing a line argued that doing so would prevent a war (or at least a bigger and more destructive war) down the road, (4) while critics argued that it would needlessly provoke or drag the United States into a war (5)--the very sorts of concerns that usually animate strident war powers debates. More generally, legal scholars consider the allocation of constitutional war powers to be of paramount importance because it could affect whether or when the United States goes to war, and because it implicates core questions about how our democracy should decide matters of such consequence. (6) Yet legal discourse in this area excludes almost completely some central ways in which the United States actually wields its military power, namely, with threats of war or force. This Article breaks down that barrier and connects the legal issues with the strategic ones.

As to the constitutional issues, there is wide agreement among legal scholars on the general historical saga of American war powers-by which I mean the authority to use military force, and not the specific means or tactics by which war is waged once initiated. (7) Generally speaking, the story goes like this: The Founders placed decisions whether to engage in active military hostilities in Congress's hands, and Presidents mostly (but not always) respected this allocation for the first century and a half of our history. (8) At least by the Cold War, however, Presidents began exercising this power unilaterally in a much wider set of cases, and Congress mostly allowed them to do so. (9) Congress's attempt to realign this power allocation after the Vietnam War failed. (10) Today, the President has a very free hand in using military force that does not rise to the level of "war" in the constitutional sense--that is, force not rising to large-scale and long-duration uses of ground troops. From a functional standpoint, this dramatic shift in constitutional power is seen as either good, because decisions to use force require policy dexterity inherent in the presidency, or bad, because unilateral presidential decisions to use force are more prone to be dangerously rash than those checked by Congress. (11)

With this story and split in resulting views in mind, lawyers and legal scholars continue to debate a series of familiar constitutional questions. Does the historical gloss of practice among the political branches-the patterns of behavior by the President and Congress with respect to using force--provide legal justification for this shift toward executive power? Without requiring congressional authorization before engaging in hostilities, are there sufficient checks on executive action? Does this shift in power lead the United States into needless and costly wars, and if so, should this result be remedied with more potent checks, whether led by Congress or courts, to reestablish a constitutional formula closer to the original one?

The main data set for analyzing these questions is, not surprisingly, actual wars and other hostile engagements of U.S. forces abroad. In ascertaining and describing the patterns of executive behavior and congressional responses, legal scholars look at armed conflicts and combat operations of the past. Legal debates heat up during or following wars, especially major ones that go badly, or military combat that extends longer than expected. Proposed solutions focus on the commencement of armed hostilities--military engagement with the enemy--and what, if any, inter-branch actions must precede or accompany it.

There is a major disconnect here, though, between legal scholarship on constitutional war powers--specifically, its predominant focus on actual military engagements--and the way the United States wields its military might, especially since the onset of the Cold War and extending into the twenty-first century. Oftentimes the most important policy tool derived from U.S. military power is not waging war, but threatening war or force. The power to threaten war is closely related to, but analytically distinct from, the power to make it.

By "threats" in this Article, I mean communications of the will and capability to use military force that are employed as a means to induce other actors to change behavior-whether to do something or to not do something. (12) During major periods of American history, including the present one, U.S. strategy has relied heavily on perceptions of U.S. military might and willingness to use it; that is, it has relied on the manipulation of risk to deter aggression or other actions by adversaries, to coerce or compel certain actions by other states or international actors, to reassure allies, and to pursue other political designs in the shadow of armed threats. (13) The primary purpose to which U.S. military might has been directed since World War II has generally been to prevent wars or deter them. When war or large-scale force was actually used, it was because a prior policy or strategy had failed--for instance, threats were insufficiently credible, crises involving U.S. threats of force escalated in ways difficult to control, and so on-rather than because making war was intended as the best approach to a danger or, sometimes, even recognized as a likely result. In this regard, most of the time that U.S. military power is "used"--and often when it is most successful--it does not manifest as a war or major military engagement at all.

There is a basic paradox at work here: if threats of force work, force does not have to be used. Other things being equal, the greater the credibility of the threat, the less likely it will be necessary to make good on it. Because this argument is about wars that don't happen, though, it is difficult to develop empirical evidence to support it. Accordingly, statesmen cannot be so sure of its validity and constitutional lawyers tend to overlook it entirely.

There is a close parallel in international law to this disconnect between legal discourse and security strategy. Article 2(4) of the United Nations Charter prohibits "the threat or use of force against the territorial integrity or political independence of any state." (14) However, beyond prohibiting the most blatantly aggressive threats, international legal doctrine in this area is not at all well developed, (15) and the regulation of threats of force is not well theorized in international legal scholarship. (16) As with the domestic law of American war powers, the threat element has mostly disappeared from discussion, even though international relations scholars recognize that threatened force is doing so much work. (17)

This Article is not a doctrinal argument. It is an argument about framing and method, intended to fill an analytical gap and therefore to inform understanding of the functional advantages and disadvantages of legal formulas for allocating war powers. (18)

Specifically, Part I of this Article contends that understanding the evolution in constitutional war powers and the merits or dangers of these developments requires both widening the data set and investigative lens to include threats of force and incorporating the insights of the past several decades of analysis by political scientists, historians, and theorists of American grand strategy. Doing so reveals aspects of the war powers story obscured by legal discourse and method focused predominantly on actual uses of force, and it alters and refines the orthodox functional arguments usually relied on by both sides--presidentialist (favoring vast unilateral executive authority to use force) and congressionalist (favoring tight legislative checks on that authority)-of the war powers debate. In game-theoretic terms, the debate between presidentialist and congressionalist legal scholars about functional advantages looks only at the final stage of a decision tree; but the President's ability to threaten force is critically important at earlier stages in determining whether that...