The power to threaten war.

Author:Waxman, Matthew C.
Position::II. Democratic Checks on Threatened Force through Conclusion, with footnotes, p. 1662-1691

    Thus far, this Article has shown that, especially since the end of World War II, the United States has relied heavily on strategies of threatened force-for which credible signals are a critical element--in wielding its military might, and that the President is not constrained legally in any significant, formal sense in threatening war. Drawing on recent political science scholarship, this Part takes some of the major questions often asked by students of constitutional war powers with respect to the actual use of force and reframes them in terms of threatened force.

    First, as a descriptive matter, in the absence of formal legal checks on the President's power to threaten war, is the President nevertheless informally but substantially constrained by democratic institutions and processes, and what role does Congress play in that constraint? Second, as a normative matter, what are the merits and drawbacks of this arrangement of democratic institutions and constraints with regard to strategies of threatened force? Third, as a prescriptive matter, since it is not really plausible that Congress or courts would ever erect direct legal barriers to the President's power to threaten war, how might legal reform proposals to more strongly and formally constrain the President's power to use force indirectly impact his power to threaten it effectively? For reasons discussed below, I do not consider whether Congress could legislatively restrict the President's power to threaten force or war; in short, I set that issue aside because even if doing so were constitutionally permissible, ardent congressionalists have exhibited no interest in doing so, and instead have focused on legally controlling the actual use of force.

    Political science insights that bear on these questions emerge from several directions. One is from studies of Congress's influence on decisions to use force, which usually assume that Congress's formal legislative powers play only a limited role in this area, and the effects of this influence on presidential decision-making about threatened force. Another is international relations literature on bargaining, (143) as well as literature on the theory of democratic peace, the notion that democracies rarely go to war with one another. (144) In attempting to explain the near-absence of military conflicts between democracies, political scientists have examined how particular features of democratic governance--electoral accountability, the institutionalized mobilization of political opponents, and the diffusion of decision-making authority regarding the use of force among executive and legislative branches affect decision-making about war. (145) These and other studies, in turn, have led some political scientists (especially those with a rational choice theory orientation) to focus on how those features affect the credibility of signals about force that governments send to adversaries in crises. (146)

    My purpose in addressing these questions is to begin painting a more complete and detailed picture of the way war powers operate, or could operate, than one sees when looking only at actual wars and use of force. This is not intended to be a comprehensive account, but is instead an effort to synthesize some strands of scholarship from other fields regarding threatened force in order to inform legal discourse about how war powers function in practice and the strategic implications of reform.

    The answers to these questions also bear on debates raging among legal scholars on the nature of American executive power and its constraint by law. Initially, they seem to support the views of those legal scholars who have long believed that, in practice, law no longer seriously binds the President with respect to war-making. (147) That view has been taken even further recently by Eric Posner and Adrian Vermeule, who argue that "[l]aw does little to constrain the modern executive" at all, but also observe that "politics and public opinion" operate effectively to cabin executive powers. (148) The arguments offered here, however, support the position of those legal scholars who describe a more complex relationship between law and politics, including that law is constitutive of the processes of political struggle. (149) That law helps constitute the processes of political struggles is true of any area of public policy, though, and what is special here is the added importance of foreign audiences including adversaries and allies alike--observing and reacting to those politics, too.

    1. Democratic Constraints on the Power to Threaten Force

      At first blush, including the power to threaten war or force in our understanding of how the President wields military might seems to suggest a conception of presidential war powers even more expansive in scope and less checked by other branches than often supposed, especially since the President can by threatening force put the United States on a path to war that Congress will have difficulty resisting. That is partially true. But recent political science scholarship reveals that democratic politics significantly constrain the President's decisions to threaten force. It also shows that Congress plays an important role in shaping those politics even in the absence of binding legislative action.

      Whereas most lawyers usually begin their analysis of the President's and Congress's war powers by focusing on their formal legal authorities, political scientists usually take for granted these days that the President is--in practice-the dominant actor with respect to military crises and that Congress wields its formal legislative powers in this area rarely or in only very limited ways. A major school of thought, however, holds that members of Congress nevertheless wield significant influence over decisions about force, and that this influence extends to threatened force, so that Presidents generally refrain from threats that would provoke strong congressional opposition. Even without any serious prospect for legislatively blocking the President's intended threats, Congress under certain conditions can loom large enough to force Presidents to adjust their policies; even when it cannot, members of Congress can oblige the President to expend much political capital. As Jon Pevehouse and William Howell explain:

      When members of Congress vocally oppose a use of force, they undermine the president's ability to convince foreign states that he will see a fight through to the end. Sensing hesitation on the part of the United States, allies may be reluctant to contribute to a military campaign, and adversaries are likely to fight harder and longer when conflict erupts--thereby raising the costs of the military campaign, decreasing the president's ability to negotiate a satisfactory resolution, and increasing the probability that American lives are lost along the way. Facing a limited band of allies willing to participate in a military venture and an enemy emboldened by domestic critics, presidents may choose to curtail, and even abandon, those military operations that do not involve vital strategic interests. (150) This statement also highlights the important point, alluded to earlier, that force and threatened force are not neatly separable categories. Limited uses of force are often intended as signals of resolve to escalate, and most conflicts involve bargaining in which the threat of future violence--rather than what Schelling calls brute force" (151)--is used to try to extract concessions.

      The formal participation of political opponents in legislative bodies provides them with a forum for registering dissent to presidential policies of force through such mechanisms as floor statements, committee oversight hearings, resolution votes, and funding decisions. (152) These official actions prevent the executive branch, even if it can be considered a unitary body, "from monopolizing the nation's political discourse" on decisions regarding military actions and can thereby make it difficult for the President to depart too far from congressional preferences when weighing strategic choices about threats. (153) Members of the political opposition in Congress also have access to resources for gathering policy-relevant information from the government that informs their policy preferences. Their active participation in specialized legislative committees similarly gives opponent party members access to fact-finding resources and forums for registering informed dissent from decisions within the committee's purview. (154) As a result, legislative institutions within democracies can enable political opponents to have a more immediate and informed impact on the executive's decisions regarding force than can opponents among the general public. Furthermore, studies suggest that Congress can actively shape media coverage and public support for a president's foreign policy engagements. (155) Under this logic, Presidents, anticipating dissent, will be more selective in issuing threats in the first place, making only those commitments that would not incite widespread political opposition should the threat be carried through. (156)

      Moreover, with regard to the signaling so critical to effective threats, "Congress matters, and matters greatly[,] to a nation's ability to credibly convey resolve to enemies and allies alike." (157) Political opponents within a legislature have few electoral incentives to collude in an executive's bluff, and they are capable of expressing opposition to a threatened use of force in ways that could expose the bluff to a threatened adversary. (158) This again narrows the President's range of viable policy options for brandishing military force. Having called for tougher action in Bosnia during the 1992 presidential campaign, for instance, President Clinton delayed coercive military threats against Serb forces once in office, due in part to congressional opposition...

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