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Constitutional Power to Threaten War: Three Points on Syria

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Tuesday, September 3, 2013 at 2:18 PM

I recently posted my new paper on The Constitutional Power to Threaten War (forthcoming, Yale Law Journal).  The basic idea is that existing debate and legal scholarship about constitutional war powers focuses overwhelmingly on the President’s and Congress’s share of power to initiate military engagements.  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 – is one of the most important ways in which the United States government wields its military might.

Here are three issues discussed in the paper that relate to Syria and the President’s relations with Congress, including his request for force authorization.  Note as a preliminary matter that although the immediate issue for Congress is whether to authorize a proposed package of attacks on Syria, more generally it is being asked now (or should be asked) to buy into the President’s strategy of enforcing the norm against using chemical weapons with U.S. military power.

First, a point about constraints on the President:  Whatever one thinks about the President’s constitutional authority to make good on his threat against Syria with military force, I’ve not heard anyone question his authority to have unilaterally issued the threat to begin with – that is, his authority to draw a red line on chemical weapon use and imply that the United States would respond forcefully.  Most would agree, though, the President has been politically constrained in what he’s communicated through words and actions to the Syrian government, U.S. allies, and others.

Some of that political constraint has probably come from Congress all along, and even if Congress were unlikely to wield formal legislative power to terminate or cut-off funds from a Syria operation that the President might launch on his own, Congress’s influence derives in part from its institutional position to make things difficult for the President, and even from influential members’ ability to speak out publicly in ways that might undermine the credibility of presidential threats.  Law helps constitute the processes of political struggles in any area of public policy, but what is special here in the context of deterrent strategy is the added importance of foreign audiences – including adversaries and allies, alike – observing and reacting to those politics, too.

Second, while Congress’s political and legal powers have operated to constrain presidential threats, the President – by declaring the threat and taking actions to double down on it – has boxed Congress in to some degree.  This is not Polk moving troops into territory with Mexico, and Congress may still buck him, especially because some members worry that the President’s proposed actions don’t go far enough to effective.  But the President has unilaterally put U.S. credibility on the line with his many statements (pursuant to foreign relations powers) and movement of U.S. naval forces (pursuant to commander in chief powers), such that he can now argue to Congress that failure to approve action will undermine U.S. security not just in Syria but with respect to Iran and other possible foes.

There’s a legal corollary to that point, too.  Legal analysis of presidential authority to use force is sometimes thought to turn partly on the U.S. security interests at stake (e.g. OLC concluded with regard to launching the 2011 Libya operations that the President had such legal authority “because he could reasonably determine that such use of force was in the national interest”).  Such arguments often treat those interests as purely contextual and exogenous to U.S. decision-making and grand strategy.  The interests at stake in crises like these, however, are altered dramatically if the President threatens force: doing so puts the credibility of U.S. threats at stake, which is important not only with respect to resolving the crisis at hand but with respect to other potential adversaries watching U.S. actions. That is, the President’s power to threaten force means that he may unilaterally alter the costs and benefits of actually using force through his prior actions as a crisis unfolds.

My third point is a question I wrestle with in the paper, which is what does all this analysis of threats of war mean normatively for allocating powers of war and peace among the political branches.  Most functional arguments about war powers focus on fighting wars or hostile engagements, with congressionalists who favor tight legal constraints on the President’s unilateral powers to use force arguing that such limits are needed to prevent costly and unnecessary wars.  Drawing on arguments that date back to the Founding, they posit that the more flexibly the President can use military force, the more likely it is that the United States will find itself in wars; better, therefore, to clog decisions to make war with deliberative processes and substantive checks in Congress.

Those arguments about congressional checks may make sense if our approach to war-avoidance is slowly and carefully calculating the costs of entering ongoing conflicts or meeting an adversary’s hostile moves with military force.  But what if our strategy is premised on deterring the adversary from making those hostile moves in the first place?  The President has made very clear that he doesn’t want to intervene in Syria but feels he must act in ways now that deter future uses of WMD that threaten U.S. and allied interests.  Which is better for communicating that threat credibly – a legally agile president or a legally constrained one?  How does the process of seeking legislative authorization affect how signals are understood by adversaries as well as allies and partners?

On the one hand, one might intuitively expect that robust democratic checks would generally be ill-suited for coercive threats and negotiations – that institutional centralization and secrecy of decision-making might better equip non-democracies to wield threats of force.  Sometimes threats are more powerful if the leader issuing them seems irrational or creates the possibility for inadvertent escalation (which seem like the opposite of the careful, open deliberation associated with congressionalist logic). On the other hand, some political scientists have recently called into question this view and concluded that the institutionalization of political contestation and some diffusion of decision-making power in democracies, especially to legislative bodies, make threats to use force rare but especially credible and effective in resolving international crises without actual resort to armed conflict.

This is a tough question, and I don’t yet answer it definitively in my paper.  I’m hoping, though, that the Syria case provides a useful case study for thinking about this.

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