Data publikacji: 04 sie 2020
Zakres stron: 261 - 322
DOI: https://doi.org/10.2478/bjals-2020-0017
Słowa kluczowe
© 2020 Slade Mendenhall, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
In the two-hundred-and-forty years since the Declaration of Independence, the United States Congress or its antecedent, the Second Continental Congress, have formally declared war eleven times against ten countries in six separate wars: the American Revolution (1776), War of 1812 (1812), Mexican-American War (1846), Spanish-American War (1898), World War I (1917), and World War II (1941). The United States (or the colonies that would soon comprise it) decisively won five of them and concluded the other (War of 1812) in a favorable draw. In fourteen instances, the U.S. engaged in a significant military conflict with congressional approval but without a formal declaration. In seven other cases, the U.S. Congress funded military engagements led by the United Nations without either formally declaring war or engaging its own military. The record for these undeclared or U.N.-led conflicts has been more mixed, occasionally resulting in clear victories but often leading to costly and prolonged engagements without a decisive or favorable result. Despite the “Powell Doctrine” having instilled in modern American military leadership the values of overwhelming force, well defined goals, and clear exit strategies,
The contrasting outcomes across these two categories invite this article's hypothesis: that the act of formally declaring war raises the cost of failure and mission creep such that legislators are more likely to press for a swifter resolution of conflict and a more decisive victory. This article views a congressionally approved, formal declaration of war as carrying certain costs and commitments for legislators. In committing the United States to war, they not only ask for certain contributions of both lives and wealth from American citizens; they put their own reputations at stake in the process, making themselves vulnerable to public backlash should the war become too costly and unpopular.
Viewing institutional commitment devices as arrangements that enhance performance by aligning costs and benefits, this article applies theoretical understandings of such arrangements in the context of wartime politics, arguing that with declarations as commitment devices attaching them to the outcome of a war, legislators will be less capable of treating war as a strictly executive affair and less prone to shifting blame for unsuccessful endeavors onto the executive. Legislators will thus apply greater pressure to bureaucrats, the executive, and the military to satisfy popular tastes for security and victory relative to that which would be exerted in the absence of a declaration. Formal declarations thus function much like written contracts in improving the fulfillment of commitments and in serving as reference points for parties’ senses of entitlement.
For a summary and update of the classical conception of contracts, see P Daryl J. Levinson,
For students and practitioners of constitutional law and constitutional economics, this perspective on the problem of political commitment in the context of war invites us to consider a potential contractual incompleteness in our constitutional separation of powers and how that incompleteness can result in poorly defined political property rights, precipitating Aziz Huq, N.L.R.B. v. Noel Canning, 573 U.S. 513__ (2014).
Perhaps most importantly, this analysis also breaks new ground by pushing legal scholarship on declarations of war beyond historical debates (reviewed below) over what was
The following section presents a brief review of the relevant literatures in law, political science, political theory, and public choice. Section Three offers a very brief intellectual history of the origins of the Declare War Clause. Section Four describes the institution of declaring war, presents the theory of formal declarations of war as commitment devices, and models the institutional conditions that prevail with and without explicit declarations, arguing that the issue at the root of common modern complaints about prolonged and indecisive military conflicts is an inadequate stricture in the constitutional assignment of political property rights and prohibitions of
In the argument of this article, we go against the trajectory of thought on the subject since the signing of the Constitution. In that time, the prevailing view has shifted from declarations of war being considered too obviously necessary to merit debate to being considered too obviously superfluous. James Madison asserted in Federalist No. 41
T Clyde Eagleton, H Eagleton,
Modern literature on formal declarations of war continues to be predominated by the legal scholarship, with political science and theory playing secondary roles. The most thorough legal analysis of the subject has been conducted by Fisher
L Saikrishna Prakash, Robert J. Delahunty & John Yoo, M. Andrew Campanelli et. al., Michael Stokes Paulsen,
In political science and theory, the most extensive recent treatments have been by Hallett, who defends the practice on the basis of preferences for peace and limited government
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The assertion that declarations have a positive effect on the outcomes of wars is either absent from or in contradiction to all existing literature on the subject. Most writers on the subject have been silent on declarations’ effect on the outcomes of wars. Hallett, a defender of formal declarations, denies that declarations affect the contest of war: “from the legal perspective, declarations of war affect primarily the condition of war, not the contest, the declaration's specific juridical functioning being to establish the legal condition of war by voiding contracts and treaties, triggering the rights of neutrals, and activating the other provisions of the law of war.”23 Accordingly, most defenders of the custom have focused their attention on normative arguments grounded in preferences for limited government,
H T Clyde Eagleton, H H
Critics of the formal declaration process, having predominated the last century of scholarship on the subject, follow primarily in the tradition of Cornelius van Bynkershoek,
C W
A rare attempt to integrate the insights of law and economics to the issue of declaring war is by Sidak, who, adapting the insights of the Coase Theorem, cites reduced monitoring costs and enhanced political accountability in formally declared versus undeclared wars.
J. Gregory Sidak, Sidak,
An extensive literature in institutional economics views the nature and implications of institutional commitment devices as arrangements that enhance performance by establishing shared goals, costs, and benefits.
Douglass C. North, North, Kenneth Shepsle,
A theory of legislative and executive commitment playing instrumental roles in foreign policy has already been detailed by Martin, who argues that for democracies, legislative integration into cooperative diplomatic arrangements is instrumental to determining the level of commitment to those arrangements.
Lisa L. Martin, Brett Ashley Leeds,
A formal declaration of war is presented as a commitment device that better ensures the successful resolution of international conflict.
This theory also puts forward a new application of the literature on elected officials’ responsiveness to voters’ preferences. An existing literature argues that elected officials face pecuniary and non-pecuniary costs if they fail to deliver what they promise and will thus strive to avoid those costs by conforming to voters’ values and expectations.
A D
Also pertinent is the copious literature on civilian control of military policy and operations. Naturally, the arguments made here take much for granted in assuming that civilian leadership matters and has a substantive effect on the conduct of war. Huntington traces the evolution of civilian control of the American military, arguing that its modern form is more a product of extra-constitutional political practice than of the framers’ design.
Samuel P. Huntington, Samuel P. Huntington, S Lori F. Damrosch, Todd S. Sechser, John Yoo, Colin Powell,
Finally, in accordance with the view that declarations do not affect the contest of war, a contrary explanation for the United States’ greater success in declared wars is selection bias. This view contends that American politicians choose to formally declare war only where and when they believe that they face a high probability of success. This hypothesis thus invites us, as we review the historical record of declared versus undeclared conflicts, to consider whether cases in which military engagements are undeclared would have appeared to politicians at the onset of conflict as more daunting, their outcomes less certain. If success can be said to have been generally viewed as less probable at the onset of undeclared wars than in declared ones, then this critique may carry considerable weight. If not, then the
The Founders’ embrace of separations-of-powers was as radical a departure from common practice in war declaration as it was in so many other aspects of governance. They were not, however, working against a blank slate. As noted above, many revered political and legal theorists through the ages had addressed the question of war declaration, from Thucydides to Grotius, van Bynkershoek, and others with whom the Founders were surely familiar.
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The Founders’ division of war powers across branches of government harkened more to their admiration for the republics of Antiquity than for the Englightenment theorists. Both Greece and Rome, in their experiences with representative government, divided war powers across separate bodies. In Ancient Athens, the Assembly ( Mogens Herman Hansen, Paul Halsall, Mogens Herman Hansen, John Rich,
The Constitution was not the first time that the Founders had vested powers over war and peace in the legislature. The Articles of Confederation established no executive branch and therefore vested the war power, by default, in the legislature, stating that “The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war,”
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Though the framers diverged over the desired strength of the new executive branch, they were in broad agreement as to what powers he should have with regard to war. George Mason, in characteristic distrust of executive power, opposed giving the executive war power, “because not safely to be trusted with it;... He was for clogging rather than facilitating war.”
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Broadly speaking, the Founders saw executive power over war as leading to the aggrandisement of that office and feared the perverse, glory-seeking incentives that it created,
William Michael Traenor,
Overall, the Declare War Clause prompted no significant debate at the Constitutional Convention. The most notable exchange over it at the Convention was prompted by James Madison's and Elbridge Gerry's motion to substitute the word “declare” for what had thus far been called the power “to make war.”
Michael S, Paulsen, T
In the end, war powers, broadly defined, extended well beyond the simple statement of Congress’ power to declare war. The Commander-in-Chief Clause, in Article II, § 2, declared that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States,” but the precise demarcation of what that role entails was left undefined, doing little to resolve these interbranch contests. Counterbalancing this role, seven clauses of the Constitution allocate war powers to Congress, including Clause 10 (defining and punishing piracies and felonies on the high seas, offenses against the Law of Nations), Clause 11 (declare war, grant letters of marque and reprisal, make rules concerning captures on land and water), Clause 12 and 13 (raise and support armies, maintain navy), and Clauses 14 through 16 (regulation of forces, call forth militia, discipline militia).
All of these Congressional powers read as preparatory or rule-making powers, constraining military action either by legal or fiscal means, fitting well with the idea of Congress setting the parameters for military action and leaving much of the prosecution of war to a more agile and decisive executive. This is not to say, however, that the framers took the commander-in-chief function to be any more immune from legislative oversight nor more likely to function well in the absence of such oversight than any other executive power; to the contrary, the aforementioned clauses together indicate a strong desire for legislative participation and oversight. And as the ensuing analysis and case studies will attest, the assumption that legislative oversight has a substantive effect on the satisfactory execution of policy is as reasonable in warmaking as in civilian matters. More controversially, I argue that Congress’ proper exercise of the war powers granted to it has a substantive effect on legislators’ attachment to war and their willingness to assert their oversight prerogatives beyond the initial declaration.
In the American political system, a declaration of war is a vote by elected representatives to commit publicly owned resources to the prosecution of a military undertaking and to alter the existing constitutional and legal relationship between the people and government for the duration of the war in order to achieve a favorable outcome.
The commitment of publicly owned resources is invariably stated explicitly in American declarations of war, granting to the president the “entire naval and military forces of the United States and the resources of the Government”— that exact wording having been shared by all 20th century declarations but expressed in some variation in all American declarations. Provisions for martial law are likewise included in Art. I, § 9 but have been further limited by subsequent pieces of legislation including the Posse Comitatus Act of 1878, 18 U.S.C. § 1385 and the Insurrection Act of 1807, 10 U.S.C. §§ 331–335. R
Unlike other acts of legislation, in which Congress makes law within the established constraints of the Constitution and delegates their enforcement to the executive, in declaring war, Congress arrogates to the federal government powers in excess of those normally granted by the Constitution in order to meet the needs of the country at that moment. Legislators conditionally grant the president, as commander-in-chief, managerial discretion over the conduct of the war subject to congressional oversight. The resulting arrangement can be thought of as a contract in which a mediator oversees a transfer of rights from one party in exchange for a guarantee of victory (however defined) from the other. The mediator (Congress) acts as trustee of those rights and monitors the recipient (the executive branch) to ensure that the terms are fulfilled to the best of its ability. The defining institutional trait of a declared war is the way in which it publicly and explicitly distributes political responsibility for the war between the executive and legislative branches. By accepting the responsibility of having authorized the war, legislators share with the executive in the costs and risks of failure (whether outright defeat or the failure to achieve certain stated goals) but also in a claim to credit should the United States prevail. The result is an alignment of costs and rewards that establishes a cooperative relationship between Congress and the executive with the fulfillment of commitments expressed in the declaration as their shared goal.
Though it is true that these powers are asserted and agreed upon by a simple majority, it is fair to say that the trustee role, as described, applies to a sufficient percentage of legislators to achieve substantial institutional commitment. Based on the fact that a majority of legislators in both houses are required to vote in favor of a declaration for it to pass and the assumption that voters’ evaluation of legislators is dependent upon the legislators’ individual voting records
Brandice Canes-Wrone et al., John E. Mueller,
Another worthwhile potential objection to this claim is that the declaration of war, which necessarily occurs at the outset of war, matters less than subsequent developments of the conflict and policy makers’ positions on those developments—budgeting, adjustments of troop levels, revised depletion reports, diplomatic negotiations, etc. This objection is consistent with common observations as to voters’ short memories.
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The conceptualization of the declaration process as a model of contractual exchange allows us to apply a rational choice framework to the problem of war's initiation. Broadly speaking, we can describe the median voter's utility with respect to war as consisting of preferences for victory, variously defined, based on standards for success applied by voters; national security; personal political rights and freedoms that might be infringed upon by policy governing the conflict; casualties; and a variable capturing the aggregate, strictly defined economic costs of the war. This last can be thought to include both public and private spending on the war, the cost of wartime regulations, additional taxes, quotas, rationing, and, in rare cases such as the War of 1812, physical damage to property and infrastructure on the homeland.
Each of these variables will be subject to public perception and interpretation, and no assumption is made here that public opinion is perfectly reflective of objective realities nor that public opinion on a given war is or is not affected by biases— random or systematic.
A formal declaration of war provides for the maximization of voters’ gains from military victory and, consequently perhaps, any resultant improvement in national security. A declared war will diminish voters’ enjoyment of personal political rights though, as the following sections will address, perhaps no more than an undeclared conflict would. Casualties and material economic costs of war are ambiguously affected by the act of declaring. The history of American military engagements does not readily provide us with two conflicts, one declared and one undeclared, within a sufficiently narrow window of time and of comparable scale for us to adequately judge the effects of a declaration on political actors’ tolerance for casualties and economic costs of war. There are logical arguments for seeing declarations as either increasing or decreasing said tolerance. On the one hand, it could be argued that once a declaration is approved, the enhanced incentive to achieve victory would lead elected officials,
This ambiguity requires me to limit my argument to the claim that declarations increase the probability of victory in war without claiming a clear positive or negative effect on the costs to the voter. The argument for declarations thus cannot be based on a claim of pure cost-reduction but rather of benefit-maximization. In terms of the model, declarations are seen to maximize politicians’ incentives to provide victory and national security, though not necessarily to reduce casualties or economic costs. Formally declaring thus in no way supplants or affects the need for diligence in fiscal management of the conflict nor strategic leadership to achieve objectives with a minimum of casualties, though the following analysis of elected officials’ utility with respect to war certainly allows for the possibility that greater political accountability could affect fiscal cost-reduction and the lessening of casualties. Geys finds the fiscal costs of war to have had a significant effect on presidential approval ratings in Korea, Vietnam, and Afghanistan/Iraq, though his results for the effect of casualties on said approval are insignificant once fiscal costs and casualties are both included in his regression.
Benny Geys, J A
The utility of politicians is similarly ripe to be dissected, though key to my analysis here is the assumption that the costs and benefits of war to politicians in the legislative and executive branch are not one in the same. Politicians are assumed to seek re-election by maximizing the median voter's satisfaction.
A nascent but intriguing literature has emerged in recent years on the economics of blame. Mehmet Y. Gurdal et al.,
Certain assumptions apply. Politicians in both branches are assumed to be risk averse. For politicians in each branch, blame leveled against them reduces their utility from war, whereas the alternate branch's blame is assumed to enter positively, offsetting it.
Christian R. Grose & Keesha M. Middlemass, Glenn R. Parker, Charles Tilly, Credit and blame are no mere game. In American public life and across life in general, who gets credit and blame matters. It matters retroactively and prospectively. It matters retroactively because it becomes part of the stories we tell about good and bad people... It matters prospectively because it indicates whom we can trust, and whom we should mistrust. Day after day, people spend plenty of effort assigning credit and blame. They take it seriously. So should we. This is not to argue that no such camaraderie exists; merely that, on the margin, politicians choose their own well being over that of fellow party members in the other branch. Where credit is concerned, politicians of each branch are assumed to only be directly concerned with their own credit (blame) for positive (negative) developments or their own share of overall credit (blame) but, partisan considerations aside, are not assumed to begrudge the other branch any positive surplus in public opinion.
This similarly raises the question of why credit and blame are traded primarily between branches rather than primarily between individual politicians. This is, in large part, a historical, empirical observation. The case studies that follow display numerous instances of—even in declared wars—attempts by one branch to ascribe ownership of the war to the other branch. Given the managerial role of the executive in military conflicts, this almost always manifests as the legislature attempting to shift full responsibility for a war's initiation and outcome to the president via such monikers as “Mr. Madison's War,” “Mr. Polk's War,” etc. We theorize that the struggle over credit and blame between branches is cost-minimizing from the standpoint of legislators trying to gain the favor of rationally ignorant voters. Feuding words and debates between legislators or between a president and senator are likely to be more tiresome to voters than, say, Democrats’ invocation of slogans such as “Bush Lied, People Died” during the Iraq war. Inter-branch blame is a less costly way for incumbents to secure their own reputations than attempting to relay the who-said-what of legislative debate to low-to-moderate-information voters.
Furthermore, neither credit nor blame in the public eye are perfectly traded between politicians of the two branches at a 1:1 ratio. That they can be shared in some proportion by politicians of both branches establishes a loose relationship in the inter-branch exchange of accountability. Positive developments in the war can theoretically lead to any distribution of credit between executive and legislative branch politicians, just as negative developments can theoretically lead to any distribution of blame between them. This is supported empirically by Parker,85 who finds that “presidential popularity seems to have no noticeable effect on Congressional unpopularity” once relevant controls have been applied. In response to a fall in the median voter's net benefits from war, the legislature is thus capable of stoking blame against the executive to such an extent that it can perfectly shirk, with all blame falling on the executive but no positive benefits to legislators. Perfect shirking, however, is not an upper bound. It is entirely conceivable that in response to a fall in voters’ net benefits from war, an increased flurry of blame leveled against the executive could be great enough as to yield legislators political
Also worth addressing is the reverse of our concern here: that a declaration which involves Congress more deeply in the prosecution of a war risks legislative meddling that might complicate its management with the usual vicissitudes of micromanagement and demagoguery, leading to less favorable outcomes. The text of the Constitution suggests that the Founders feared this. Waging war is one of the executive's inherent powers and was vested in the monarch in every state that the Founders would have known in their lifetimes and in nearly every historical case of which they were students (with the noted exceptions in periods of Ancient Greece and Rome). The power to declare it is a partial divestment. The reason why the Commander-in-Chief Clause appears is to clarify that whereas Congress has the power to declare war, the president has the power to manage it. It is worth asking, then, whether there is a means of credible legislative commitment not to meddle. As the foregoing analysis might suggest, though, the risks here are rather single-tailed. The natural inclination of many legislators from the early years of the republic has been to try to shift full responsibility for war-making onto the executive and enjoy the quieter life of peacetime domestic policy. From a public interest standpoint, then, the required institutional solution is not a “corridor” system that would limit deviations in legislative behavior in either direction but a “floor” system that simply limits the downside risk of shirking. In other words: a commitment device.
Lastly, the effectiveness of declarations of war in altering voter perceptions of credit and blame for politicians of either branch hinge upon public awareness of the declaration. It is reasonable to assume that even a poorly-to-moderately informed voter will know whether the United States is engaged in any major armed conflict at a given time, but if a notable percentage of the general public is unaware of whether Congress has formally declared war or whether a given conflict is an executive-led undertaking, then the role of the declaration in allocating credit and blame—and therefore in enhancing commitment—would be significantly diminished. As we turn to case studies in the next section, it will be necessary to establish whether the general public was reasonably aware of Congress's participation in the act of declaring war for us to say confidently that the declaration played a role in enhancing legislative commitment. In general, however, two claims can be made in favor of my argument. First, declarations are open acts of Congress that are as susceptible to public scrutiny and analysis as any other legislation and are very widely publicized when they do occur, such that there is no strong basis for believing that any voter with an interest in knowing whether war has been declared should face considerable costs in obtaining that information. Second, until the Korean War began in 1950, the United States had never engaged in a large-scale military conflict against a foreign power without a formal declaration.
I admittedly make some exceptions in saying “against a foreign power,” but I believe it to be justified. The American Civil War was obviously a notable instance of internal conflict that did not receive a formal declaration but in which the U.S. was victorious. However, with internal conflicts the choice to formally declare confers a measure of diplomatic formality to an internal rebel group that would contradict the federal government's claim that such groups are illegitimate. Thus, the logic changes. I also do not see intranational conflicts as suffering from the sort of political commitment problems that international ones can, since loss in a civil conflict usually spells much greater personal and political risks, so I make no claims one way or the other as to declarations in such instances.
This analysis leaves us with some important assertions and limitations. The assertions are that declarations of war enlist legislators as monitors over the political conduct of war and that the desire to take credit for a war's positive developments and avoid blame for negative developments lead those legislators to effectively improve the outcome of a war through better oversight. The legislators’ ability to shift blame for unfavorable developments in the war is bounded by their having given written approval for the war, delegated extraordinary powers to the executive, committed all of the resources of the country to themselves, and assumed the roles of monitors over the war's prosecution. Though it could be argued that even in the presence of a declaration, legislators could still blame the executive's management of the war, history indicates that, having passed a declaration, legislators are seemingly more active participants in that management through their oversight powers and that they treat the war more as they do Congressionally passed law or Congressionally administered regulation than like the workings of executive bureaucracy. The result is an improvement of the median voter's welfare with respect to war by making victory more probable and, where observed, more complete.
The limitations of this theory are (i.) that a case cannot be made that declarations unambiguously reduce the costs of war, only that they improve the probability of a successful outcome and whatever spoils may result; and (ii.) that the declaration carries no promise of a perfectly equitable distribution of credit and blame between the two branches, only one in which blame cannot be so drastically shifted onto the executive that legislators are unaffected or positively affected by the costs of war placed on voters. Thus, from the standpoint of maximizing the median voter's utility from war, the case for declarations is that legislators, having explicitly signed on to a role in the war's initiation, are thereby more directly accountable for its prosecution and restricted in their ability to shift credit and blame at their convenience. The relationship between voter utility and support for incumbent legislators is thereby strengthened insofar as voters base their votes on utility from the war, and legislators, in order to maintain support, must expend greater effort towards increasing voter utility and less towards manipulating public perceptions.
An undeclared conflict under the American model of government is a decidedly executive undertaking. In some cases it has entailed an authorization by Congress that grants approval for military engagement under unspecified Congressional oversight to be conducted (or not) at legislators’ discretion. More often, it has consisted of unilateral executive discretion over the choice to engage, the scale of forces to be employed in the task, the objectives to be achieved, and the time and manner of withdrawal. In some cases this practice may be the result of divergent views by the executive and legislators as to whether to engage in war, with the executive proceeding against the will of Congress. More often, it is the result of a shared preference by politicians in both branches for less restrained executive action. In any case, it is a failure of monitoring such that the institutional structure designed by the framers breaks down and costs and benefits become misaligned, diminishing political commitment to those guarantees given by government to the public.
In an undeclared conflict, there is no change in the fundamental legal and constitutional relationships between the people and their government. No explicit grants are given to Congress committing the nation's resources to the prosecution of the conflict and no legislative procedure is mandated. Prior to the 1973 War Powers Resolution
War Powers Resolution, 50 U.S.C. §§ 1541–48 (2019). W
Larger engagements conducted within the framework established by the Resolution have received Congressional approval via Authorizations for the Use of Military Force (AUMF's), whether before the president orders military action or after the fact. Though issued by a majority vote of Congress, AUMF's do not constitute the same transformation of legal and constitutional relationships as a formal declaration. As a Congressional Research Service analysis of the differences notes,
With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.
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In issuing AUMFs, however, Congress has frequently refused to explicitly name a country or entity against which the executive shall use military force, instead providing a general cause such as responding to the September 11, 2001, attacks and leaving it to the president's discretion how far the war should be carried and across which political boundaries. Thus, under an AUMF, Congress is giving the president considerably greater diplomatic leeway and unilateral discretion over decisions to militarily engage the governments or inhabitants of other countries so long as the executive justifies those engagements as being in the service of a broad public purpose or agenda stated by the AUMF.
An arguably parallel process occurs when the president uses political commitments such as the 2015 Joint Comprehensive Plan of Action as a substitute for treaties when he cannot get the support of a majority of the Senate. Softer promises stand as substitutes for the sanctity of law. It is not clear whether or how a set of incentive effects arises comparable to what is described here, but it is an interesting question to be explored. In principle, it seems logical to assume that the same diminished legislative attachment to the terms of the commitment should result, but unlike the legislative consent afforded when Congress grants an AUMF, resort to a political commitment, as in the 2015 JCPOA case, seems more of an executive last resort that is limited by Congress’ refusal to give it statutory force. The president is then left to act within his constitutional parameters as chief diplomat. In any case, Congress has not shown itself willing to fully abandon its rights in treaty-making as it has in war-making, so the question remains hypothetical. Congress, in enacting the AUMF, sweepingly and in separation of powers terms somewhat surprisingly declared its acceptance of unilateral presidential military action... and the claim of unilateral presidential constitutional authority to do so... All of this is extraordinary. The AUMF marks a stunning, landmark paradigm shift in the constitutional practice of war powers, light years distant in tone and attitude from the War Powers Resolution of 1973,
Michael S. Paulsen,
The framework that this establishes is best described by Sidak, who distinguishes between a “Coasean trespass” between branches of government, in which one branch assumes powers constitutionally granted to another without the other's consent, and “Coasean bargains” in which two parties implicitly agree to transfer constitutional powers between them, thereby pursuing their own preferences at the expense of the electorate.
J. Gregory Sidak, J. Gregory Sidak,
Given the paucity of efforts by Congress to reassert its own constitutional authority in warmaking, the current arrangement appears to be a clear-cut Coasean bargain in which legislators have exchanged their constitutional powers for electoral stability and the executive has accepted this transfer in exchange for a greater share of credit for American victory and security. As a result of this bargain, from the standpoint of the electorate, an executive military action is troubled by an implicit collusion between its would-be agents in Congress and the executive branch.
The value of the declaration to the public, as asserted in the previous section, was that it bound legislators to a formally established role in the war-making process. With legislators unbound from their roles as mediators and trustees, the executive branch is permitted to proceed, less constrained, in the engagement of military forces. Risk-averse legislators are better able to avoid oversight of or involvement in the conflict and continue to govern as they previously had with minimal added political risks and responsibilities of wartime. Meanwhile, in the absence of Congressional oversight, the expenditures of lives and wealth on a conflict are choice variables for the executive branch politicians that they can increase without checks on their discretion in order to achieve victory and a greater degree of national security for which they can take credit. As Gene Healy has written,
Individual presidents have every reason to protect and expand their power but individual senators and representatives lack similar incentive to defend Congress's constitutional prerogatives. ‘Congress’ is an abstraction. Congressmen are not, and their most basic interest is getting reelected. Ceding power can be a means toward that end: it allows members to have their cake and eat it too. They can let the president launch a war, reserving the right to criticize him if things go badly.
Gene Healy, L Glenn R. Parker, J Parker, J Adam J. Berinsky,
In the terminology of my earlier analysis, the effect of foregoing the commitment device can be conceived of as diminishing both the credit and blame allotted to legislators, neither improving nor diminishing legislators’ reputation with voters but rather satisfying legislators’ risk aversion by insulating them from changes in the median voters’ utility from the conflict. If the casualties and economic costs of war grow such that voters’ net returns from war turn negative, legislators, having assumed either no monitoring role for themselves or a notably diminished one, are free to place greater blame on the executive until their own well being is fully restored or even increased beyond its previous level. The possibility for legislators to achieve political gains by placing greater blame on executive branch politicians suggests that in addition to insulating themselves from the political risks of war, legislators may well benefit from the median voter's loss of utility from the conflict. In practice, whether legislators shift blame onto the executive merely insofar as to insulate themselves from voter dissatisfaction or choose to opportunistically gain from the voter's loss is a function of broader political considerations such as whether the president's party has a legislative majority, the strength of the president's party in cultivating consensus and limiting defection, the vulnerability of legislators’ states and districts, etc.
In a representative government, the proposition that a collusive bargain could transpire between politicians of these two branches in which elected politicians are able to reallocate power between them per their own preferences, irrespective of an established constitution, suggests a lack of completeness in the assignment of powers. That politicians might, as a result of that incompleteness, transform a loss of voter utility into a gain for themselves suggests an institutional failure and an inversion of the principal-agent model on which the United States Constitution was explicitly based. The resulting costs that have been incurred by the United States throughout a long series of undeclared conflicts thus signal not only the risks of military engagement without declarations but, more fundamentally, the potential for perverse incentives and the reallocation of constitutional powers wherever negotiation between branches is not prohibited and is costly to monitor.
The ultimate consequence of such institutional failure in the context of military policy is a significantly diminished legislative commitment to achieving decisive and favorable resolutions to foreign conflicts. Legislators, having never attached their reputations to an engagement, are insulated from its political costs and, in the extreme, stand to potentially
A theory of declared and undeclared wars at our disposal, the remaining challenge is thus to look at those cases in which the United States has formally declared war as well as those in which it has militarily engaged without a declaration in order to determine whether its behavior is consistent with this theory's predictions. The predictions are (i.) that instances in which a war is formally declared will see greater legislative oversight over its prosecution than instances in which it is undeclared and (ii.) that declared wars will be pursued to more decisive and favorable ends than undeclared conflicts. I will make a general argument in each case for both points and will substantiate the second point with other parties’ interpretations of victory, such as Feaver and Gelpi
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One criticism that the foregoing theory readily invites is that of selection bias: might legislators be more likely to declare war in those instances in which they believe beforehand that the United States is likely to succeed? According to this line of reasoning, legislators consent to formally declare war because they recognize from the outset that the United States is highly likely to emerge successful, thereby minimizing the political risk of their decision. Conversely, they avoid formal declarations when they perceive the United States to be in a more tenuous position and prefer not to attach themselves to what they foresee to be a riskier venture. This criticism offers clear-cut predictions: when it can reasonably be said that the United States is in a more advantageous position relative to an adversary at the outset of a conflict, Congress will be more likely to declare war; among that pool of conflicts in which the United States and its opponent are more evenly matched or in which the United States is seen as being at a disadvantage, however, undeclared wars will be more common. Another worthwhile critique is that of rational ignorance. It can be argued that declarations are an inadequate explanatory variable because voters are unaware that war has been formally declared. Historical evidence on this is difficult to find, making the critique hard to conclusively refute, but I will present arguments as to why it is unlikely to be an undermining factor.
Thus, for the theory to be seen as descriptive, both predictions must be borne out, the selection bias critique must be refuted, and it must be shown that voters are sufficiently aware of the declaration of war for the accountability relationships to function as described by the model. That is what the following case studies will examine.
The United States began, in a sense, with a declaration of war. The Declaration of Independence was surely more than that—a statement of diplomatic intent, an assertion of rights, and an impassioned statement on moral and political philosophy—but among its core political functions was to formally declare the American colonies’ willingness to defend their intentions to separate by the use of military force, or what they could muster of it. The Declaration is frequently treated as a mere statement of grievances or a spirited profession of intent by the Second Continental Congress, but as Sandefur
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Of the innumerable historical accounts since written of the Founders and the American Revolution, no notable claim or debate has emerged to the effect that the Second Continental Congress was not attentive and involved in its leadership of the war. This is understandable given the circumstances. Aside from being America's first war as an independent country, the Revolution was unique in the stakes that it imposed on political actors, with every signer of the Declaration reasonably sure that he would personally face execution and his family be divested of their property should the effort fail. Thus, the Revolution can be viewed as an extreme case of the greatest personal stakes faced by political actors who elected to declare war. Their level of involvement in the war's prosecution both as a body and individually bears out the predictions of this model. Two and a half weeks after the Declaration's signing, they had established a Board of War to oversee the administration of the war, and though none of the signers would be killed in battle, one third of them served as militia officers during the war, four were taken captive, and many lost considerable personal wealth in the process.
Historian Gordon Wood writes:
In 1763, Great Britain straddled the world with the greatest and richest empire since the fall of Rome. From India to the Mississippi River its armies and navies had been victorious. The Peace of Paris that concluded the Seven Years’ War... gave Britain undisputed dominance over the eastern half of North America.
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Granted: Wood is quick to note that in some senses this great discrepancy was misleading, with significant disadvantages for the British including three thousand miles of ocean separating them from the front lines of the war, complete with the communications, logistical, and supply problems that it imposed. He likewise cites the size of the American territory, the wild terrain, and the colonies’ cultural and political fragmentation as obstacles for the British Army. Wood, however, may be in some ways giving the British too much of a handicap. The obstacle of the Atlantic was not small, but oceans had not prevented Britain from establishing lucrative trade lines around the globe, holding colonies in America for over a century, establishing by force other powerful footholds to its empire in India and the Far East, nor making war when necessary to protect them. As for the size of the American territory, the terrain, and social fragmentation, these can be seen as being equally an obstacle to both combatants. It is arguable that such features, especially the social characteristics, were often as troublesome for the revolutionaries as for the British.
Whatever the developments that would come throughout the war— the escalation of British forces in North America to over 50,000, with 30,000 German mercenaries supporting them; the foundation and development of the Continental Army and Navy; and a long series of bloody battles—it seems reasonable to say that the Continental Congress could not confidently have perceived war with Great Britain to be easily undertaken or decidedly winnable. Thus, the selection bias critique is weak in this case. As much can be deduced from Founders’ writings in that era. George Washington wrote in his general orders in January of 1871, “We began a Contest for Liberty and Independence ill provided with the means for war—relying on our own Patriotism to supply the deficiency.”
S Benjamin Rush,
As to the public's knowledge of a formal declaration, I grant that the Declaration of Independence was presented as a conditional ultimatum, but it did make clear that if King George III did not peaceably accept the secession of the colonies from the British Empire then the Americans were willing to resort to force. Given that anti-British sentiments had been manifesting in armed skirmishes for over a year, there was little expectation that the British would allow the colonies’ departure without a fight. As for awareness of the Declaration itself, news spread rapidly, with descriptions of the Declaration or, just as often, its full text printed on the front page of major newspapers in the colonies’ larger cities. Public readings were common, and whether in print or public profession the Declaration was widely publicized across the English-speaking world and Western Europe by the summer's end.
Jared Keller,
The American Revolution, on these observations, appears to vindicate this model. Though the governing structure was different than in our other case studies, lacking an executive branch, it is entirely possible that members of the Second Continental Congress, or some portion of them, could have shirked, distanced themselves from the war's administration, or individually abandoned the effort had they not literally signed their names to it from the outset. Histories of revolutions often demonstrate the ability of elites to lessen their involvement when the costs of participation rise. If we wish to understand why not one of the fifty-six signers defected nor abdicated his role in the Revolution, in addition to their own moral convictions we can read the effective commitment achieved by a formal document to which each man signed his name and attached his reputation. The American Revolution enjoyed an overwhelming support from its political leaders, was seen through to a decisive and favorable end, cannot be said to suffer from selection bias in the sense of legislators declaring because they felt exceedingly confident in their success from the outset, and, given its public readings and rapid publication at home and abroad in multiple languages, it is difficult to imagine that any notable percentage of the population was not quickly aware of the Declaration's signing and the new state of war. America's first experience with war, despite the institutional differences with its post-Constitutional governing structure, thus serves as one of the best examples of the effectiveness of a signed declaration fostering unified political stewardship over the prosecution of war.
The vote to declare war against Great Britain again in 1812 is, to date, the narrowest vote for war in the history of the United States. It proceeded with only fifty-nine percent support from the House of Representatives and sixty-two percent from the Senate.
Leland R. Johnson, “
The Continental Army's and Navy's rapid buildup during the American Revolution did not carry over into the beginning of the nineteenth century. The Founders’ opposition to maintaining a standing military left it vulnerable and unprepared when conflict with Britain again escalated thirty years after the Revolution. Yet again, at the onset of war, the now-United-States found themselves dramatically outmanned and out-gunned by Great Britain in a conflict that was to be decided primarily on the seas, where Britain's advantage was strongest. The British Royal Navy, centuries old, had over 500 active warships, 140,000 seamen and, among them, 31,000 trained marines. The U.S. Navy, just eighteen years old, lacked a single battle fleet, had sixteen ships, approximately 5,000 seamen, and 1,000 marines.
Michael J. Crawford & Christine F. Hughes, The Reestablishment of the Navy, 1787–1801: Historical Overview and Select Biography, N Eugene Van Sickle,
The U.S. had other perceived advantages that emboldened it: Britain's distraction with the Napoleonic Wars, its distance from friendly dockyards where it could make repairs and resupply, and memories of American victory in the Revolution still clear in the minds of many who were young soldiers at the time of the Revolution but had since risen to the ranks of veteran statesmen. Nonetheless, the Congressional debate over whether to go to war with Britain was bereft of concrete arguments for the United States’ military preparedness. Voices of caution such as Rep. Harmanus Bleecker (F-NY) pointed directly to the inadequacy of its resources and viewed them as so insufficient as to make a vote for war treasonous:
“Sir, we cannot go to war within sixty days. I mean not to offend gentlemen, or to rouse their feelings, but it is impossible that we can go to war at the expiration of the embargo... What is the state of your fortifications? Where are your armies, your navy? Have you money? No, sir, rely upon it there will be, there can be, no war, active offensive war, within sixty days... the people know we cannot go to war, at the expiration of the embargo...They think... that for the Government to go to war in our present unprepared state, would be little short of an act of treason.”
24 A It would appear astonishing, with the general apathy prevailing in this House, and out of it, that a slumbering Legislature, and a people stupefied under the effects of this powerful political narcotic, the embargo, should have their dreams disturbed by the thought of war. War! when, as a gentleman has justly asked, where are the means to carry it on?
It is urged that they do not believe the United States can go to war. Well, if they do not believe, and will act accordingly, with themselves be it, on themselves be the consequence. Several laws have been enacted, during the present session, bearing strong evidence in themselves that they are preparatory to war, carrying with them also evidence that the United States can go to war at a time when the unprovoked injuries inflicted by a foreign nation renders war necessary.
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Despite its tenuous political support, however, the War of 1812 was throughly overseen by both the executive and legislative branches of government. Opposition was fierce, and opposition towards efforts to expand the war may have persisted, but as Hickey's statement suggests, not to the point of neglecting nor obstructing sufficient political oversight of the war nor allowing the U.S. Army and Navy to go unsupplied or unsupported. It is important here to reiterate this model's prediction: that a formal declaration of war enhances legislators’ commitment to the outcome of the war by maintaining legislative involvement in its conduct. It is not to say that a considerable number of legislators will not continue to oppose the war; merely that those who voted to enter into war in the first place, having issued an explicit commitment to it, will show a greater propensity to see the conflict through to a favorable end. The War of 1812 demonstrates the resilience of that effect in the midst of a very divisive war.
If anything, the thrust of Federalists’ protests was to make the legislature all the more involved in the war's conduct. The Annals of Congress during the war years show regular and attentive involvement by Congress on conduct of the war
In its first military undertaking since the signing of the Constitution, the United States already demonstrated the political rifts that would characterize many conflicts to come, in which Congress strives to shift accountability for the war onto the executive. Even when formally declared, history shows a strong propensity for wars to become popularly identified with the president, if not at congressmen's initiation then certainly with their tacit approval. The War of 1812 quickly became known by critics and Federalist opponents as “Mr. Madison's War,” despite the far more open and vociferous pursuit of its initiation by various members of Congress.
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Where the American Revolution provided a kind of pure case of entirely legislative oversight of a war with widespread approval, the War of 1812 served as both the United States’ first military experience with multiple branches of government and the most divisive declared war in its history. Measured against the predictions of our model, however, it appears to hold up. Despite its considerable unpopularity in certain regions of the country, the war enjoyed thorough legislative oversight and was seen through to a favorable draw in which the British embargo was ended and U.S. territorial integrity was maintained; based on Congressional transcripts, the case cannot reasonably be made that Congress was confident enough in the war's outcome as to feel assured of victory ex ante, thus dispelling the selection bias critique; and the heated debate over the war's declaration, giving birth to a much-contested and highly publicized Congressional faction known as the “War Hawks,” makes it unlikely that interested voters would not have known whether the United States had ever declared war or not. Newspapers in the North and mid-Atlantic such as the
John E. Talmadge,
At noon on May 11, 1846, the United States Congress received a message unique in American history up to that time. It was a notification from President James K. Polk that the United States was actively engaged in a military conflict with Mexico, an assessment of the egregious injustices that Polk claimed Mexico had perpetrated against the United States, and a request not that Congress declare war anew but that it vote to authorize a war that was already ongoing.
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Polk's approach was not without careful design. In the preceding weeks and months, he had directed U.S. troops to move beyond the Nueces river into now-western-Texas, intruding into what was at that time recognized as Mexican territory. His claim that “after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon American soil” was, on every point, an inversion of actual events.
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There was little to no concern as to whether the United States could be victorious in a war against Mexico. Having learned the lessons of unpreparedness twice, the U.S. Navy would have been well prepared for another war against Great Britain, to say nothing of smaller, poorer, less formidable Mexico.
James K. Polk to William H. Polk, July 14, 1846,
Despite great political unrest, the president's approach worked, and the vote to declare “Mr. Polk's War” passed with ninety-two percent support in the House and ninety-five percent in the Senate. Moral doubts as to the war's legitimacy remained strong, and its aggressive character, driven by ideals of Manifest Destiny, was clear.
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The declaration of war against Mexico was thus perceived by many who voted for it not as an endorsement of the war itself but a profession of their own commitment to support the Army, thereby making perhaps the clearest expression of our model's predictions in action. This commitment was not universal. John Quincy Adams (W-MA8) declared it a “most outrageous war” and noted to a fellow congressman that he “hoped the officers would all resign, & the men all desert, & he would not help them, if they did not.”
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If the War of 1812 tested the viability of our predictions when the legislature is fiercely and almost evenly divided over a war, the Mexican-American War tests them under conditions of rising and, ultimately, majority legislative opposition to an executive who has clearly and overtly extended himself as the war's unquestionable instigator. In such conditions, it should be even easier for legislators who oppose the war to declare it a case of unmitigated executive overreach and to distance themselves from it as the Federalists did in 1812. However, in the war against Mexico, Whig legislators proclaimed themselves opposed to the war before signing on to the declaration as an act of explicit commitment, consigning to the effort their patriotic support. With Winthrop and others clearly stating their motivation, they implicitly acknowledged the declaration as an expressive device that assigned to them a role in the war's prosecution. In the twenty-one months of war that followed, Congress remained thoroughly involved in the war, to the point of ensuring that it was quickly ended when its course diverged from the agenda supported by a majority of the American people and assumed an unwanted air of imperialism.
This case is the most susceptible yet to the selection bias critique. Democrats can be argued to have been more willing to formally declare war because they knew that the probability of victory was exceedingly high. One might even argue that those Whigs who went along with the vote would have been less willing had Mexico been a more formidable adversary, a la Britain. However, the option of going to war without a declaration appears to have been absent from the debates in this period. America's few experiences with it in the early nineteenth century (discussed below) were highly contentious, and as of the 1840's, the executive branch still behaved as if successfully entering a war depended upon Congress's passage of a formal declaration. Polk may have been willing to send troops into battle before securing legislative approval, but his effort to pen the declaration himself and push it through Congress points to a sense that it was still indispensable, even for such a
By 1898, Cuba had seen three decades of struggle for autonomy from Spain, ranging from outright war (the Ten Years’ War, 1868–1878) to insurgency and organizing by exiled activists for Cuban economic independence. Since 1895, it had been caught in a guerrilla war between the Spanish military and revolutionaries led by José Martí. In consideration for American-owned property in Cuba and the risks posed to American business interests by the war, President William McKinley sent American naval forces to the Havana harbor as a security measure against further instability.
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Debate as to the cause of the explosion persists to this day, though the evidence is now seen to weigh against foul play. Louis Fisher, summarizing the findings, writes, “A naval board of inquiry concluded that the blast was caused by a mine placed outside the ship. Release of the board's report led many to accuse Spain of sabotage, helping to build public support for the war. Subsequent studies, including one published in 1976 and later reissued in 1995, determined that the ship was destroyed from the inside, when burning coal in a bunker triggered an explosion in an adjacent space that contained ammunition.”
Louis Fisher, O E In the 1890s, not just [Secretary of the Navy Theodore] Roosevelt but a good slice of his countrymen were possessed by a hunger for war” and that McKinley “was swept aside by hawks like Roosevelt and [newspaper publisher] William Randolph Hearst.
Neither of these factors, however, appear to have manifested in insufficient commitment. The official record of Congressional meetings during this era of American history is sparse, making a detailed account of the frequency of meetings on the topic of the war hard to establish. However, what we know of legislative involvement in the war points to it being a central focus of legislators’ efforts at the time. Senator John Sherman of Ohio (R), chairman of the Senate Foreign Relations Committee, established a subcommittee on Cuban affairs and sent Senator Henry Cabot Lodge to Cuba to liaise with and advise the Cuba Libre movement. Meanwhile, Democrats and Republicans literally fistfought one another on the House floor over rules disputes determining who would be the first to pass a resolution recognizing an independent Cuba.
As a result, the already powerful pro-war sentiment that pervaded the country even before the point of declaration complicates the view of a declaration enhancing commitment in the case of the Spanish-American War. In addition to animosity over the explosion of the R T
That spirit was born out in Congress after the explosion in Havana, as politicians scarcely waited for the results of the investigation into its causes before increasing funding and armaments. On March 2, the Senate rushed through a vote for $50 million in defense spending to prepare itself for a war that seemed inevitable.
E Piero Gleijeses, T
The selection bias critique also carries more weight in this case than in the preceding cases, as a high probability of success undoubtedly made the pro-war spirit easier to indulge. As in the war with Mexico, expectations of victory entering the Spanish-American War were strong. Given the military and, specifically, naval advancement of the United States over the 19th century and Spain's decline relative to its former military preeminence, politicians could reasonably expect swift victory at the time of declaration. Cuba, ninety miles from the Florida Keys, was far more accessible to the United States than to Spain, whose forces, already possessing a foothold in its contested territories (Cuba, Puerto Rico, Guam), would have to rely heavily on them for resupply or else wait for reinforcements from across the Atlantic. The United States, both militarily superior and logistically advantaged, could enter the conflict confidently and securely—likely explaining much of the pro-war fervor that preceded the declaration's passage. And public support would manifest far beyond poll numbers. At the outset of the war, the U.S. Army numbered 28,000 soldiers. President McKinley asked for 125,000 volunteers. He wound up with more than one million over a matter of weeks.
The case of the Spanish-American War is relatively ambiguous by comparison to its predecessors. Officially lasting just over six months from the declaration of war against Spain until the signing of the Treaty of Paris on December 10, 1898, it saw only three months of intensive fighting against Spain, resulting in Spain's cessation of Puerto Rico, Guam, and the Philippines to the United States and the independence of Cuba. In that brief span, it is viewed as having effectively ended the Spanish Empire. A summary of events up until the Treaty of Paris would seem to present a clear-cut victory in a formally declared war with thorough legislative involvement, and indeed it is listed by Correlates of War as a decisive victory for the United States.
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Other unique traits emerge from the Spanish-American War. Given the overwhelming, unprecedented American eagerness for war in the preceding years, the commitment-device-effect of a declaration for legislators appears to be made redundant by strong preferences for war and conquest among both politicians and the general public. Commitment devices are rendered rather useless where principals and agents share the same goals with similar fervor, which appears to be the case here. This also provides our first case of an overtly reluctant president being committed to war by legislators eager for conflict. In that sense, it is the reverse of what was observed with President Polk in the Mexican-American War. Though it is our only case study to follow such a pattern, it demonstrates the reciprocality of declarations in committing both branches to the conflict, no matter which is more eager for the fight. It likewise illustrates the commitment of one house of Congress—the Senate—to prosecuting the war even when it passed the declaration by only a very narrow margin.
By April of 1917, World War I had been underway in Europe for nearly three years. The assassination of Archduke Franz Ferdinand by Bosnian nationalists in 1914 had spurred the issuance of the July Ultimatum, a set of deliberately unacceptable demands, by Austria-Hungary to Serbia. Russia had mobilized against Austria-Hungary in defense of Serbia; Germany had declared war against Russia; tensions boiled over into conflict between Germany and neighboring France and Belgium; and Great Britain had entered to defend the neutrality of Belgium, bringing every major power in Europe into the fray. President Woodrow Wilson had won reelection in 1916 on the basis of his having kept the United States out of the war, in a state of “armed neutrality,” but the sinking of the passenger ship
The declaration of war against Germany passed with strong support: ninetythree percent of the Senate, eighty-eight percent of the House. Coincident with the Zimmerman Telegram and resumed U-boat activities were economic considerations that favored supporting the Allies, whom American financiers had already kept afloat with sizable lines of credit. Should they default, politicians feared that overexposed American banks might be destabilized. When Wilson consulted his cabinet on the question of declaring, he found unanimous support for entry.
David C. Gompert et al.,
The European powers had entered into World War I in 1914 confident that it would be a brief endeavor without devastating costs. Wilson, despite his acting three years later, believed the same of American entry. To his credit, he was right, though not for all of the reasons he presented. In arguing for entry before Congress, Wilson expressed the arbitrary view that though particular leaders agitated for war, all the peoples of Europe truly wanted peace and found themselves caught beneath the machinations of their rulers. In arguing this, Wilson's estimation of human nature was more assumed than thoroughly defended. His second reasoning, however, was decidedly more practical. From Gompert et al, “Wilson did not expect that large-scale U.S. forces would actually be needed to fight on the Western Front; rather, he figured that political, financial, and material support would tip the balance decidedly in favor of the Allies.”
In the years leading up to American entry, a number of prominent American leaders in government and business, including Theodore Roosevelt and former Secretaries of War Elihu Root and Henry Stimson, had led what was known as the Preparedness Movement, an effort to fund and organize American readiness should it ultimately need to enter the war in Europe.
George C. Herring, M Mitchell Yockelson,
Congress was, for their initial reluctance, actively involved in policies supporting military preparedness and supply even before the declaration of war. Rep. James Hay (D-VA7), an ardent promoter of peace and an opponent of conscription, was ultimately persuaded to support some of the Wilson administration's preparedness plans. Rep. David H. Kincheloe (D-KY2) opposed increasing the Army's ranks prior to war but, anticipating the plans of President Dwight Eisenhower decades later, advocated for the construction of a national highway system as a matter of national defense (Herring, 1964). Congress voted to give the federal government the authority to call up the National Guard in times of crisis. Once war began, Congress would be actively engaged in military and domestic policy—sometimes for better and sometimes for worse. Benjamin Kleinerman writes that “The World War I Congress, under the prodding of Woodrow Wilson, authorized all those powers Wilson thought might be necessary to fight the war.” Wilson repeatedly sought, and in some cases received, legislative approval for expansions of his executive powers in ways justified by but not limited to wartime necessity. Through the Espionage Act of 1917 and the Sedition Act of 1918, Wilson sought to suppress dissent and criticism of the war, asking Congress for “authority to exercise censorship over press” in order to silence “persons in a position to do mischief.”
Benjamin A. Kleinerman,
Means aside, the war was successfully brought to an end, at least for the moment. Correlates of War lists it as a victory for the United States.
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The 1930s were, economically, a lost decade for the United States, the Great Depression having left the country thoroughly depleted. By 1941, for the first time since the stock market crash of 1929, U.S. GNP was returning to its precrash levels and had begun to show signs of stability and growth.
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The decision to enter war with Japan was, in this case, thrust upon American politicians. An attack of such scale and deliberation would be impossible to ignore. The option by Roosevelt's administration to declare war against Germany was initially undecided, as his advisors deliberated over whether to wage a singular war in the Pacific against Japan or to divide America's efforts and aid ally Britain on the European front. That the decision was effectively made for them by Germany's choice was momentous. Roosevelt advisor John Kenneth Galbraith remembered:
We could have been forced to concentrate all our efforts on the Pacific, unable from then on to give more than purely peripheral help to Britain. It was truly astonishing when Hitler declared war on us three days later. I cannot tell you our feelings of triumph. It was a totally irrational thing for him to do, and I think it saved Europe.
Gitta Sereny,
Whether it is creditable to budgetary prioritization or to the Founding Fathers’ establishment of a culture averse to a large standing military, in every war in American history yet discussed, the United States has found itself significantly diminished from its previous military standing by the time of the next war. World War II is somewhat of an exception. Military strength stood at roughly 250,000 in 1940—almost unchanged since 1920. After the fall of France, it began to accrue forces and supplies in case Europe's war should become its own. When the war ended, three-and-a-half years after Pearl Harbor, 16.1 million Americans had been drafted or volunteered to serve in the Armed forces.
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Historian David L. Porter, in his analysis of the seventy-sixth congress, which presided from 1939 to 1940, looks to the congressional records and finds a more active role played by Congress in the lead-up to World War II than that played by the president. Citing Congress's revision of neutrality legislation, its provision of a loan to Finland, its support of a peacetime draft, and a shift from isolationism to internationalism to interventionism, he gives a leading role to Congress in readying American forces for war.
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However the credit is to be apportioned, both branches played a role in ensuring that the war was conducted with adequate supply. Harrison writes that, “[b]y mid-1942 war contracts had been issued to a sum exceeding the value of the 1941 gross national product,” and the United States would be the only major war economy to never rely heavily upon external supply, demonstrating a level of productivity unmatched by the other major powers, all while using a lesser percentage of its population in the military and war economy.
Mark Harrison, S. Res. 252, 78th Cong. (Feb. 7, 1944).
The result of the United States’ military and political efforts was the most decisive victory in its history. The Allies won the war on all fronts, and the U.S. not only turned the course of the war by its entry but ultimately secured the unconditional surrender of the European Axis powers and Japan.
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Those cases in which the United States has formalized a military engagement with a declaration of war constitute a small minority. Relative to these six cases of formally declared war, in thirteen instances the U.S. Congress has authorized military operations against foreign governments or in defense of American trade, and in seven instances it has authorized the engagement of American troops under United Nations Security Council resolutions with provisions for funding made by Congress. In at least 125 other cases, an American president has led a military venture without congressional approval or appropriations.
John C. Yoo,
The 5-0-1 record of the United States in declared wars finds a stark contrast in the 1–4 record of moderate-to-large-scale undeclared engagements over this period. In exchange for that poor record, by this author's calculations using official data, the United States has suffered 97,311 casualties.
U.S. D S Linda J. Bilmes,
We will also see that the selection bias critique is undermined by a litany of instances contradicting its predictions. If, as that critique proposes, legislators are more inclined to formally declare war when they know that victory is highly probable, then we should have observed many more formal declarations than we have over the period in question. Whatever the degree of confidence felt by American politicians in the wars analyzed in the previous section, the selection bias critique requires us to believe that they were more confident going to war against Great Britain (twice), Mexico, Spain, Germany (twice), Italy, and Japan than against the opponents it has faced in the last six decades. Whereas debate can be entertained as to the relative military strengths of the Allied and Axis Powers in 1941, it is inconceivable to argue that the United States should have seen itself as militarily inferior to or equalled by North Korea, the North Vietnamese, the Hussein regime in Iraq, the Taliban in Afghanistan, or other adversaries not discussed here such as Libyan Arab Jamahiriya or Shia and Druze militias in Lebanon. Yet no formal declarations were passed or proposed. Thus, that argument appears to be further weakened by a lack of ambition on the part of legislators to seek easy credit for wars that were viewed,
In an attempt to validate the theory of undeclared conflicts, I will examine the following cases with an eye towards signs of deficient legislative oversight, unchecked executive discretion in the conflict's management, more successful efforts by legislators to shift blame onto the executive branch, and largely indecisive or unfavorable resolutions.
In August of 1945, in an agreement with the United States designed to end World War II in the Pacific, the USSR declared war against Japan and pushed Japanese forces out of the northern half of the Korean peninsula as far as the 38th parallel. Following the American defeat of Japan that same month, the Soviets would hold the conquered territory in the North as the South emerged under a new, American-led government. By 1948, Korea was operating under two separate governing systems—one communist, one free. On June 25, 1950, in an attempt to unify the peninsula under communist leadership, Northern forces supported by the Soviet Union and China commenced an invasion of the South, immediately provoking a response by the recently established United Nations Security Council. UNSC Resolution 82, issued that same day, demanded an immediate end to hostilities by North Korea and called upon member states to “render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities.”
S.C. Res. 82 (June 25, 1950). S.C. Res. 83 (June 27, 1950).
In response to these developments, the administration of U.S. President Harry S. Truman exercised an unprecedented degree of unilateral activism, quickly committing the United States to leadership of the U.N.'s mission via naval and air strikes and soon engaging over 326,000 American troops to the Korean peninsula in the name of containing communist aggression.
D “Throughout most of American history, Congress was the predominant power in the U.S. government. In the 1930s, however, owing first to the Great Depression and then to World War II, the power and responsibility of the president increased dramatically and eclipsed that of Congress, particularly in foreign affairs. This trend became even more pronounced with the coming of the Cold War in the late 1940s. Congress increasingly seemed to defer to the actions of the president with little, if any, critical debate or oversight. President Harry S. Truman broke new ground by committing U.S. troops to the Korean War in 1950 with no prior congressional approval or debate and no formal declaration of war.”
Stefan M. Brooks, Harry S. Truman, Y
As a product of these concerns and America's newfound status as global superpower, the Truman administration ensured that the U.S. would provide the vast majority of the U.N.'s peacekeeping forces. As noted, it did so unilaterally at first, with little to no participation by members of Congress. Records show that on June 27, 1950, two days after North Korean invasion, President Truman invited a small number of congressional leaders (the exact number not being preserved in the record) to the White House not to ask for permission but to inform them of his chosen course of action with respect to Korea, with every member of that delegation submitting to the president's plan after only a few clarifying questions.
Harry S. Truman, Barton J. Bernstein,
In a scene that would repeat in the Vietnam and Iraq Wars, a legislature that passively accepted entry into a conflict, never exerted any notable effort to avoid entry, nor challenged the constitutional authority of the president to initiate a conflict would go on to challenge the sitting president on the merits of entering it after the fact (if not always wanting to deeply involve themselves in improving its administration). In each case, entry into the conflict is passively accepted without issue only to be made contentious later in response to public dissatisfaction. In each case, however, with Korea establishing the model, legislators seem, at the onset of conflict, wholly willing to engage in the sort of implicit Coasean bargain described by Sidak.
Consistent with later cases, legislators of the 80th and 81st Congresses would abandon their former passivity when the war turned unpopular, shifting blame onto the executive while downplaying their own early acceptance of it. Following Chinese entry into the war on October 19th, public support dissipated, falling from favorability ratings in the high seventies to below fifty percent and fluctuating well below fifty percent for the duration of the war. By October of the following year, fifty-six percent of Gallup respondents agreed with the position that Korea was a “useless war,” and fifty-one percent in March of 1952 called it a mistake.
J Bruce Buchanan, L
In keeping with our model's predictions, Congress strove to shift all blame for the war's negative developments onto the president. Republican Senator Robert Taft (OH), a presidential aspirant, strove to carve out an executive image for himself by frequently criticizing both Truman and General Douglas MacArthur for the progress of the war. The criticism of Taft and others proved effective as Truman's approval ratings fell precipitously, vacillating in the high twenties to low thirties from January 1951 onward, giving him an average approval rating of 36.5% in his second term and a low of twenty-two percent in February of 1952, leading him to decide not to seek reelection in November of that year.
D
America's first instance of conflict without declaration in the post-WorldWar-Two era appears, by all accounts, to validate our theory of undeclared conflicts. It was a costly war at $341 billion in 2011 dollars and 54,246 American deaths.
S M P
If Korea established the model of costly, indecisive, and feverishly debated military engagements that have characterized the post-World-War-Two era, the Vietnam War epitomized it. Officially lasting nine years, from the 1964 Gulf of Tonkin Resolution to the withdrawal of U.S. forces from Vietnam under the 1973 Paris Peace Accords, it began inauspiciously as part of a gradual escalation of U.S. involvement in Southeast Asia. In 1955, President Dwight Eisenhower sent 700 soldiers to Vietnam in 1955 as “military advisors” in support of the South Vietnamese, who were struggling to resist a rising communist regime in the North. In 1961, the incoming Kennedy administration increased the number of Special Forces troops and advisors from 794 to 959. In 1962, their numbers were increased dramatically to 8,498, with 53 having been killed. By the end of 1963, the number of American military personnel in Vietnam rose to 15,620, and a clear trend of rapid escalation had begun.
Tim Kane,
As American troop levels in Vietnam rose throughout the early 1960's, public records do not reveal a corresponding increase in Senate national security committee hearings. Significant upticks in the frequency of oversight hearings didn’t begin until 1964, when the Gulf of Tonkin Resolution was passed, authorizing U.S. military action against the North Vietnamese in response to alleged firings against U.S. Navy ships off the coast of Vietnam. To be sure, after the Resolution both the SFRC and SASC increased oversight subtly, relying on closed-door executive hearings rather than the sort of public hearings likely to attract press and public awareness. Neither committee held a public hearing on Vietnam until 1966, even as Operation Rolling Thunder commenced bombing North Vietnam.
L
As in the Korean War, the frequency of legislative hearings tracked poll numbers, rising as public approval of the war plummeted and it assumed a central role in American national politics. Fowler notes that from 1964 to 1975, the point of final withdrawal from Vietnam, the SASC and SFRC conducted 345 days of hearings on national security, 137 of which were public and 208 of which were closed-door executive hearings. Ninety percent of Armed Services’ 147 meeting days were about crises and scandals related to Southeast Asia, as were sixty-three percent of Foreign Relations’ 198 meeting days. As of the spring of 1966, though, the vast majority of Senate oversight hearings had been conducted behind closed doors.
Stefan M. Brooks, F
By the spring of 1966, the weight of the war's growing unpopularity fell considerably on the executive. SFRC Chairman J. William Fulbright (D-AR) publicly and repeatedly invoked the term “credibility gap” to describe his committee's lack of trust in executive branch officials and commenced a series of “educational” public, televised hearings in order to call out the administration for its alleged secrecy, with the irony of that committee's disinterest in the conflict two years earlier going seemingly unmentioned. Correspondingly, President Johnson's approval ratings regarding handling of the war fell from 63 percent to 49 percent in response to the scrutiny.
Due to the powerful effect of public outrage, the Vietnam War would not go completely unattended to by legislators, but it nonetheless bears out the theory of a legislature that, having never formally participated in the decision to wage war in the first place, is able to secure itself against the political risks of doing so and lay the costs of the war at the feet of the executive. Fowler notes that “After the long nightmare of Vietnam”—but not during— “Congress reasserted its institutional prerogatives in international affairs. Lawmakers passed the War Powers Act in 1973, publicized a long list of CIA abuses, terminated funding for military operations in Southeast Asia, formed intelligence committees in both chambers to oversee clandestine activities, asserted greater control over the president's distribution of military aid, and trimmed defense spending.”
L
For failings in a task of government—war making—which was specified in the Constitution to be the province of Congress, Lyndon Johnson so lost popularity that he chose not to seek reelection in 1968.
The role of Vietnam in Johnson's choice not to run has long been the subject of some controversy, with former officials in his administration denying that poll numbers on Vietnam played any role in the president's choice, U.S D M P
On August 2, 1990, under the leadership of Baathist dictator Saddam Hussein, Iraq invaded the neighboring gulf state of Kuwait. Iraq, heavily indebted and economically depressed after a deadly, protracted war against Iran had long perceived Kuwait as rightfully belonging to it and saw Kuwaiti oil reserves as a potentially valuable source of revenue. The Hussein regime cited Kuwaiti defection from OPEC oil production quotas as “economic warfare” and used it as a pretext for invasion. Decrying the act as unprovoked aggression, the United Nations Security Council imposed economic sanctions against Iraq. Under the leadership of President George H.W. Bush, U.S. forces were deployed to Saudi Arabia in preparation for repelling Iraqi troops from Kuwait. On January 17, 1991, the U.S. and a broad international alliance of 38 countries began a naval and aerial bombardment, followed by a ground invasion on February 24. By March 10, the Iraqi invasion had been effectively thwarted, Iraqi troops had been repelled back across the border, and the more than half a million U.S. troops in the Gulf began to withdraw. Total U.S. casualties numbered 382, a comparatively very small figure among post-World-War-Two undeclared conflicts.
U.S. D
The clear cut victory of U.S.-led Coalition forces in the Persian Gulf War is one outstanding exception to the pattern of protracted, indecisive, and largely unsuccessful undeclared conflicts that characterize American military history in the post-World-War-Two era.
S H.R.J. Res. 77, 102d Cong., 105 Stat. 3 (1991).
The scale of the conflict and the relative strength of the combatants are the most readily available explanations. Certainly, were it a larger world power that had invaded, the conflict would likely have been longer and more difficult. However, if scale and relative strength were deterministic, U.S. intervention in Vietnam, Lebanon in 1983, the Libyan Civil War in 2011, and a litany of other minor interventions should presumably have been more decisive. That the Gulf War was a collaborative multilateral intervention conducted with broad international support should enhance commitment to a successful resolution. There again, by the same logic, the War in Afghanistan, with full NATO support, should have been similarly swift and decisive. And it cannot be discounted that, unlike Korea, Vietnam, Lebanon, Afghanistan, Iraq in 2002, and Libya in 2011, the Persian Gulf War was a clear case of a small, sovereign nation invaded by a foreign army with no recognized claims to any part of its territory. Lacking the ambiguities of intrastate conflicts, rebellions, and insurgencies, it presented clear delimitations and a well defined geographical boundary beyond which the invaders must be repelled, making the standard for victory apparent.
As to the role of the legislature, an argument could be made that Congress's moderate support for intervention (fifty-two percent in the Senate, fifty-seven percent in the House)
S.J. Res. 23, 107th Cong., 115 Stat. 224 (2001). U.N.S.C. Res. 660 (1990);, S.C. Res. 661 (1990);, S.C. Res. 662 (1990); S.C. Res. 664 (1990); S.C. Res. 665 (1990); S.C. Res. 666 (1990); S.C. Res. 667 (1990); S.C. Res. 669 (1990); S.C. Res. 670 (1990); S.C. Res. 674 (1990); S.C. Res. 677 (1990). H.R.J. Res. 48, 102d Cong. (1991). S. 332, 102d Cong. (1991). H.R. 3, 102d Cong. (1991). S.J. Res. 10, 102d Cong. (1991). H.R.J. Res. 88, 102d Cong. (1991); S. Res. 69, 102d U.S. Cong. (1991). H.R.J. Res. 63, 102d Cong. (1991).
In sum, the Persian Gulf War enjoyed a beneficial combination of features that made it relatively easy to see through, and its success relative to other undeclared conflicts in the post-World-War-II era is probably best understood as a combination of these: an overwhelming military advantage against a small, underfunded and ill-equipped enemy; broad international support; a well defined standard of victory; and a very short duration, which left little room for the kind of political fatigue that has plagued more prolonged conflicts such as Vietnam and the War on Terror. Those who view formal declarations as incidental to the conduct of war may well argue that the Persian Gulf War is a textbook case of an AUMF sufficing for the achievement of a decisive and favorable resolution. Looked at very narrowly, with our focus restricted to the domestic political environment, that perspective would seem to bear the weight of the evidence. However, viewed in the broader context of these favorable circumstances, we see what good fortune is required before an undeclared conflict proves successful. To say that an undeclared conflict can succeed when all of the relevant forces align perfectly in leaders’ favor is hardly indicative of the sort of robust political institution that we should want when undertaking a venture so costly and tenuous as war. Thus, while the Gulf War may be evidence that an undeclared conflict can be successful, it also arguably indicates the ideal and seldom observed conspiracy of circumstances that appear necessary to secure that success. Nonetheless, fair analysis dictates that I must acknowledge it as the most credible countersuit to our model of undeclared conflicts.
The War in Afghanistan that began in the fall of 2001 was the first instance since World War II in which the United States engaged in a significant armed conflict on its own behalf rather than as an intervention into the internecine conflicts of another region. After the attacks of September 11th, the United States, under the leadership of President George W. Bush and with the joint collaboration of the United Kingdom, invaded Afghanistan for the stated purpose of seeking out all of those responsible for those atrocities and unseating the Taliban regime which had protected and fostered them. Consensus held at the time and further developments substantiated the deep interconnectedness between Al-Qaeda, led by September 11th architect Osama bin Laden, and the Taliban under the leadership of Mullah Omar. Though Afghanistan was largely held to have been rendered a failed state through protracted civil war, the unrecognized Taliban government was seen as the predominant power within Afghanistan and was the closest it had to a functioning system of government.
Nonetheless, when President Bush sought authorization from Congress for military action, he neither requested nor received a formal declaration of war or an AUMF limiting the executive to action against certain individuals, organizations, or nations. The AUMF that was granted was entirely open-ended, delegating to the president unilateral discretion to take the pursuit of justice across any national borders and against any parties he deemed responsible for the attacks. In its own words, “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
S.J. Res. 23, 107th Cong., 115 Stat. 224 (2001).
Contrary to all formal declarations by the United States, the motivating clause of the 2001 AUMF makes no mention of Congress except to detail what Congress authorizes the executive to do. It does not explicitly commit any of the nation's resources to its control. By the very nature of the AUMF it is asserting the position not of the ultimate authority with respect to war, with the executive as manager thereof, but a far more delegative role. It has not established and has, in fact, resisted attempts to establish rigorous reporting by the executive. In the deliberations over the 2001 AUMF, Rep. John Tierney (D-MA6) moved to require a report from the president on executive actions under the resolution every sixty days. The movement was quickly dispelled by a majority of the House.
J H.J. Res. 114, 107th Cong., 116 Stat. 1498 (2002).
Thomas E. Mann and Norman J. Ornstein, writing in late 2006, note the collapse of legislative monitoring in foreign policy even in the first five years of the War on Terror: “In the past six years... congressional oversight of the executive across a range of policies, but especially on foreign and national security policy, has virtually collapsed. The few exceptions, such as the tension-packed Senate hearings on the prison scandal at Abu Ghraib in 2004, only prove the rule. With little or no midcourse corrections in decision-making and implementation, policy has been largely adrift.”
Thomas E. Mann & Norman J. Ornstein, Douglas Kriner & Francis Shen, L
Even in the 2006 midterm elections, when voters listed the Iraq War as one of the two most important issues, their opposition to the war manifested as largely anti-Bush in nature, voting out Republicans as a statement against the Republican president. CNN exit polls showed fifty-seven percent opposition to the Iraq War and fifty-eight percent disapproval of George W. Bush.
Lydia Saad,
Consistent with a pattern, both of these conflicts proved to be long, ambling projects carried out at immense cost and without a clear or decisive resolution. The War in Afghanistan has been the single longest military engagement in the history of the United States, officially dating over thirteen years from the time of U.S. invasion until NATO officially handed power over to the Afghan government in December 2014. Correlates of War lists it initially as an interstate war but codes it as having “transformed into another type of war.” From there, it was reclassified as an “Extra-State War” (one conducted between a state and non-state actor) and is listed as ongoing as of December 31, 2007.
M Tim Craig, Spencer Ackerman, Greg Jaffe & Michael Birnbaum, Julie Hirschfield Davis, Tim Kaine,
The history of American military engagements can be read as a story of two very different kinds of endeavors: one, formally declared wars, which have been thoroughly prosecuted and invariably successful; the other, undeclared wars, the record of which has been considerably mixed. The paradox of the postWorld-War-Two era, in which the United States has has simultaneously been recognized as the world's preeminent superpower but at the same time suffered a long series of prolonged, indecisive, and unsuccessful conflicts, suggests that the source of its troubles is not a matter of sheer military strength. Politicians and pundits have resorted to calling America's modern military actions “a new kind of war” in which the old rules do not apply, in which clear victory can never be expected, and which may well last decades or a generation. The cryptic nature of these characterizations, however, invites us to look for underlying changes in the institutional structure of American warfare, both military and political. The most politically relevant of these is America's abandonment of formal declarations of war.
Formal declarations, this theory has argued, are much more than the outmoded technicalities that they are often dismissed as being. By requiring the explicit, formal endorsement of two branches of government, they have the effect of committing politicians in both branches to the outcome of the war, enhancing legislative involvement and improving the political will to achieve a favorable and decisive outcome. By limiting politicians’ capacity to shift credit and blame at will, declarations better ensure that politicians have a reputational stake in the outcome, inducing them to exert more effort in the conflict's political administration. In this sense, they carry commitment value analogous to a formal pledge or written contract.
The result is a stark contrast in the two models’ records of success, with all six of America's formally declared wars having ended on clearly favorable terms, a distinction enjoyed by only one out of five major undeclared conflicts in the post-World-War-Two era. The Persian Gulf War aside, the trend appears to be in the direction of progressively less legislative involvement and accountability over time. The Korean War saw initial legislative deference that was quickly, if briefly, punished by voters. The Vietnam War saw no such punishment, with the majority party—Democrats—retaining considerable control of the legislature at all times throughout a strikingly unpopular and widely protested war. In both cases, we saw an executive—Truman, then Johnson—bear such undivided responsibility for the war in the public eye that despite starting with eighty-seven percent and seventy-nine percent approval, respectively, neither was able to seek reelection. Only in the 2006 midterm elections does the unpopularity of a war seem to have played heavily into voter preferences in a way that lasted more than one congressional term, but the argument for legislators’ partisan association with President Bush being the dominant influence there is strong. Thus, with presidents being punished for wars in more dramatic ways than legislators, we must consider the possibility that the view of war as a primarily executive undertaking is being cemented in public opinion, contrary to the dictates of the Constitution. With a small and dwindling percentage of the electorate having been alive the last time the United States formally declared war, it is reasonable to assume that voter expectations for legislative involvement in the political tasks of warmaking will continue to be significantly diminished relative to previous eras.
A lingering question that these case studies invite is what motivates the executive branch's repeated willingness to pursue such endeavors. The legislature's desire to distance itself from wars of choice is in keeping with our understanding of politicians as risk-averse. Why presidents choose to get involved in such conflicts of their own accord despite the great costs it has imposed on their predecessors is less clear, though the assumption of risk aversion for the executive should not necessarily be abandoned. It is possible that the executive faces such different incentives and expectations in voters’ eyes that the safe bet for presidents is to err on the side of engaging in conflict, particularly since the passage of the War Powers Resolution gave presidents an explicit window within which they could act, free from accountability to Congress. Such provisions may make executives more likely to receive blame for inaction on an
The debate over formal declarations of war has historically been divided between, on the one hand, those who view them as archaic, hyper-formalist obstacles to swift, executive-led military action and, on the other, those who view them as proper checks on executive power that are necessary to ensure proper political representation in decisions over war and obediance of constitutional strictures. Opponents of declarations prioritize efficiency in military action; proponents cite ideological values, diplomatic propriety, and careful restraint. This article has put forth a unique institutional viewpoint on the subject, arguing that declarations, through the incentives they establish, have a significant effect on the political conduct of the war that makes expedient victory more likely. From a survey of historical arguments for declarations, this appears to be the first to propone them on the grounds of enhancing the likelihood of military victory. Marrying a respect for the value of constitutionally limited government with a focus on broader strategic considerations, it is arguably the most efficiency-oriented perspective on either side of the debate, if efficiency is broadened to include the achievement of victory in war rather than simply the lowest cost means of entering a war. Whether and how the implicit Coasean bargain between the two branches can be overcome in a manner that restores the intent of the Constitution's framers is a narrower but more daunting subject of future inquiry troubled by perverse political incentives, coordination problems, and voters’ own rational ignorance.