Document Type

Article

Publication Date

2014

Center/Program

Roger Hertog Program on Law and National Security

Abstract

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats - to coerce or deter enemies and to reassure allies - are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape American security policy.

The swelling scope of the President's practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President. Indeed, adding threats of force to that story might suggest that this shift in powers of war and peace has been even more dramatic than usually supposed. This Article shows, however, that congressional influence operates more robustly-and in different ways -than usually supposed in legal debates about war powers to shape strategic decision-making. In turn, these mechanisms of congressional influence can enhance the potency of threatened force.

By refocusing the debate on threatened force and its credibility requirements, this Article also calls into question many orthodoxies of the policy advantages and risks attendant to various allocations of legal war powers. Instead of proposing a policy-optimal solution, the Article concludes that the allocation of constitutional war powers is-and should be - geopolitically and strategically contingent. The actual and effective balance between presidential and congressional powers over war and peace in practice necessarily depends on shifting assumptions and policy choices about how best to secure U.S. interests against potential threats.

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