A positive theory of the war-powers constitution

This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent military build-up or troop deployment. This Article assumes that the President has the exclusive ability to influence the scope of an international crisis that precedes an actual armed conflict by making public threats against foreign states. Once such public threats reach a critical threshold, however, backing down by any domestic institutional actor becomes difficult due to the presence of significant domestic audience costs. In other words, since a domestic audience is likely to punish any domestic institutional actor that attempts to back down from an escalating international crisis, neither Congress nor the courts have much of an incentive to intervene once the President decides to initiate conflict. The President thus has a significant institutional advantage in framing the domestic audience costs for going to war. Given this apparent agenda-setting advantage, however, it is puzzling as to why the President would ever seek congressional authorization before initiating international conflicts. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic game of domestic and international interaction. At the domestic level, once the President decides to initiate conflict, he has an incentive to seek congressional authorization as a form of political insurance if he believes that the war is going to be fairly long or costly, or if he is uncertain about the prospects of victory. At the international level, the President also has an incentive to seek congressional authorization if he is uncertain about the outcome of the conflict and wants to send a costly signal to the foreign enemy about the country’s resolve to prosecute the conflict. In sum, the ex-ante beliefs of the President regarding the outcome of a conflict and the possibility of subsequent punishment by a domestic audience ultimately determine his decision to seek congressional authorization. Finally, this Article also argues that Congress has an incentive to constrain the President’s war-making agenda in the shadow of a politically unpopular war. But while the President often shapes public opinion in his war powers role, Congress tends to react to public opinion when it constrains the President’s war initiatives. This Article uses historical case studies, including the 2003 invasion of Iraq, to test these theoretical arguments. Nzelibe, A Positive Theory of the War Powers Constitution A Positive Theory of the War Powers Constitution Jide Nzelibe This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent military build-up or troop deployment. This Article assumes that the President has the exclusive ability to influence the scope of an international crisis that precedes an actual armed conflict by making public threats against foreign states. Once such public threats reach a critical threshold, however, backing down by any domestic institutional actor becomes difficult due to the presence of significant domestic audience costs. In other words, since a domestic audience is likely to punish any domestic institutional actor that attempts to back down from an escalating international crisis, neither Congress nor the courts have much of an incentive to intervene once the President decides to initiate conflict. The President thus has a significant institutional advantage in framing the domestic audience costs for going to war. Given this apparent agenda-setting advantage, however, it is puzzling as to why the President would ever seek congressional authorization before initiating international conflicts. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic game of domestic and international interaction. At the domestic level, once the President decides to initiate conflict, he has an incentive to seek congressional authorization as a form of political insurance if he believes that the war is going to be fairly long or costly, or if he is uncertain about the prospects of victory. At the international level, the President also has an incentive to seek congressional authorization if he is uncertain about the outcome of the conflict and wants to send a costly signal to the foreign enemy about the country’s resolve to prosecute the conflict. In sum, the ex-ante beliefs of the President regarding the outcome of a conflict and the possibility of subsequent punishment by a domestic audience ultimately determine his decision to seek congressional authorization. Finally, this Article also argues that Congress has an incentive to constrain the President’s war-making agenda in the shadow of a politically unpopular war. But while the President often shapes public opinion in his war powers role, Congress tends to react to public opinion when it constrains the President’s war initiatives. This Article uses historical case studies, including the 2003 invasion of Iraq, to test these theoretical arguments. * Assistant Professor of Law, Northwestern University Law School. B.A. 1993, St. John’s College; M.P.A. 1995, Princeton; J.D. 1998, Yale. I am grateful to John Yoo, Daryl Levinson, Tom Ginsburg, John McGinnis, Steven Calabresi, Max Schazenbach, and others for helpful comments and advice. This Article also benefited from comments at workshops at Northwestern University Law School, Northwestern University’s Center for International and Comparative Studies, and the International Law Conference at University of California Boalt Hall School of Law. I would also like to thank Gaurav Mathur, Brian Axelrad, Avital Even-Shoshan, and Rob Nederhood for their excellent research assistance. Hosted by The Berkeley Electronic Press A Positive Theory of the War Powers Constitution 2