The Power to Threaten War
Waxman, Matthew C., The Yale Law Journal
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
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. …