Are Congressionally Authorized Wars Perverse?

Abstract

In the contemporary debate over the allocation of war powers, the standard account assumes that prior congressional authorization for the use of force will produce unambiguous deliberative effects because it channels the war-making decision through multiple political actors with varying points of view. Contrary to the received wisdom, this experimental Article advances the empirically plausible but counter-intuitive assumption that congressional authorization of the use of force might actually have a perverse effect. Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars, congressional authorization might actually do the opposite: because such authorization allows the President to spread the potential political costs of military failure or stalemate to other elected officials, it will lead the President to select into more high risk wars than he would otherwise choose if he were acting unilaterally. In other words, since congressional authorization acts as a political "insurance policy" that partially protects the President against the possible political fallout from failed military engagements, such authorization is more likely to make the President willing to engage in wars where the expected outcome is uncertain. More importantly, not only is the President likely to use congressional authorization as a hedge against the loss of political dominance when a war goes bad, he is also likely to use it to prevent the political opposition from exploiting the electoral vulnerabilities of members of Congress from his own party. Finally, because of the short-term electoral risks associated with voting against a presidential request to use force, members of Congress are likely to approve the President's war agenda, especially if the President requests such authorization shortly before a national election. As the political fallout from the ongoing Iraqi occupation mounts, this Article uses foreign policy debates in Congress and the executive branch regarding both the costs of the occupation and a possible withdrawal plan to test these theoretical hypotheses.

Keywords: constitutional law, international law, foreign relations law, national security law