Deciding for War
Stephen M. Griffin
Tulane University Law School
June 25, 2012
Tulane Public Law Research Paper No. 12-13
Decisions for war are among the most serious any government can make. Yet few are satisfied with either the process or outcome of those decisions. I argue that the decisionmaking failures in the major wars the U.S. has fought since 1945 fall into distinct patterns that are connected to a broader constitutional imbalance. More precisely, they are executive branch failures that stem from the lack of interbranch deliberation built into the post-1945 constitutional order. The most prominent patterns have been a failure to engage in realistic war planning, a closely related failure to decide on war aims, and a background assumption that the president can carry the entire burden of war decisionmaking alone.
This Article is part of a larger project on war powers and hence a detailed description of the original constitutional order and how the executive and legislative branches departed from it are provided in a companion article, Reconceiving the War Powers Debate. I summarize the argument of this companion article in Part I, setting forth the views about the Constitution that provide the baseline for my inquiry into how the executive branch decided for war after 1945. The heart of the Article is a historical review of executive branch decisionmaking with respect to the five major military conflicts the United States has fought. These are presented as case studies in Parts II-V: Korea, Vietnam, the 1991 Gulf War, and the “9/11 Wars” of Afghanistan and Iraq. The case studies demonstrate the link between the lack of interbranch deliberation in the post-1945 constitutional order and the various pathologies of executive branch decisionmaking that resulted. Part VI employs the case studies to pose some challenges for presidentialist scholars who contend that the executive branch has a decisive advantage over Congress with respect to making decisions for war.
Those interested in the argument of this paper should consult my forthcoming book, "Long Wars and the Constitution," (Harvard University Press, June 2013).
Keywords: war powers, presidential power, Korea, Vietnam, Gulf War, Iraq Warworking papers series
Date posted: June 25, 2012 ; Last revised: February 17, 2013
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