The Power to Threaten War

By Waxman, Matthew C. | The Yale Law Journal, April 2014 | Go to article overview

The Power to Threaten War


Waxman, Matthew C., The Yale Law Journal


II. DEMOCRATIC CHECKS ON THREATENED FORCE

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. …

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