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CHOICE Outstanding Academic Titles, 2011
When the United States goes to war, the nation’s attention focuses on the president. As commander in chief, a president reaches the zenith of power, while Congress is supposedly shunted to the sidelines once troops have been deployed abroad. Because of Congress’s repeated failure to exercise its legislative powers to rein in presidents, many have proclaimed its irrelevance in military matters.
After the Rubicon challenges this conventional wisdom by illuminating the diverse ways in which legislators influence the conduct of military affairs. Douglas L. Kriner reveals that even in politically sensitive wartime environments, individual members of Congress frequently propose legislation, hold investigative hearings, and engage in national policy debates in the public sphere. These actions influence the president’s strategic decisions as he weighs the political costs of pursuing his preferred military course.
Marshalling a wealth of quantitative and historical evidence, Kriner expertly demonstrates the full extent to which Congress materially shapes the initiation, scope, and duration of major military actions and sheds new light on the timely issue of interbranch relations.
In 49 BC Julius Caesar and his legions crossed the Rubicon, a small river marking the border between the province of Cisalpine Gaul and Italy itself. The move triggered a bloody civil war between Caesar's forces and those of the Senate under the command of Pompey the Great. For two millennia scholars have analyzed every facet of Caesar's fateful choice, and with good reason: the decision irrevocably altered the course of Western history itself. As a testament to its importance, the phrase "crossing the Rubicon" remains in our vernacular to indicate a transformative decision. As serious students of both classical and European history, the Framers of our Constitution recognized the paramount importance of the power of war and peace. Notes from the 1787 Constitutional Convention capture the fervent debate in Philadelphia over who in the new government should hold the power to initiate war, and the question remained heatedly contested in the early republic. For example, lambasting President James K. Polk's aggressive assertions of military power in taking the nation to war with Mexico, a young Congressman named Abraham Lincoln warned: "This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." Today, decisions to dispatch American military might abroad remain the most consequential and scrutinized actions of our body politic. Reflecting this, the vast majority of scholarship in political science focuses almost exclusively on these decisions to initiate military ventures and on the relative influence that the president and Congress have in making them. Because of this exclusive emphasis, however, prior scholarship tells us surprisingly little about how interactions between the executive and legislative branches continue to shape the conduct of these military ventures once they are launched. Moreover, by overlooking these later dynamics, existing scholarship yields an incomplete picture of the calculations made by forward-looking strategic actors when deciding whether or not to use force.
After the recourse to arms, policymakers are confronted with a myriad of decisions about a martial venture's scale and conduct. Ultimately, they must also decide when and how to bring American troops home. These decisions plainly are of considerable political, strategic, and historical import; yet it is not clear how, within our system of separated institutions sharing power, the two branches interact to chart the course of military affairs. The ambiguous constitutional distribution of war powers—what the great legal scholar Edward Corwin called the "invitation to struggle"—entrusted to both branches enumerated powers and bases of authority from which to shape these decisions. As a result, over the course of American history starkly different views, both constitutional and normative, have emerged concerning who should play the lead role in shaping the conduct of American military ventures. In the early days of the republic one of the chief architects of the Constitution, James Madison, wrote, "Those who are to conduct a war [i.e., presidents, by virtue of the commander-in-chief clause] cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws." Congress and not the president, in Madison's view, should stand at the helm of the ship of state in wartime, particularly in deciding when and how an armed conflict will end.
Such sentiment may sound foreign to contemporary ears, given that many of our beliefs and opinions have been forged in an era of augmented presidential war powers. President George W. Bush's assertions of plenary commander-in-chief powers to direct an ongoing military operation as he alone saw fit may better accord with our understanding. During a 2007 Iraq War appropriations battle with Congress, for example, Bush made clear his belief that the legislature should play virtually no role in shaping the conduct of military operations. "I don't think Congress ought to be running the war," he curtly remarked to the media. "I think they ought to be funding our troops. I'm certainly interested in their opinion, but trying to run a war through resolution is a prescription for failure, as far as I'm concerned, and we can't afford to fail." When pushed further by a reporter, Bush rejoined, "Let me make sure you under stand what I'm saying. Congress has all the right in the world to fund. That's their main involvement in this war, which is to provide funds for our troops. What you're asking is whether or not Congress ought to be basically determining how troops are positioned or troop strength. And I just—I don't think that would be good for the country."
No observer of contemporary American politics could mistake Madison's vision with the current state of affairs. Modern presidents are undoubtedly the preeminent actors directing the conduct of the nation's major military engagements. Yet Bush's protestations remind us that sometimes the legislature does rise up, engage the military policymaking process, and attempt to reassert its constitutional prerogatives in deciding whether a military venture is "continued" or "concluded." Whether such actions have any tangible policy consequences, and ultimately how these competing conceptions of the roles of the executive and legislative branches in shaping the conduct of major military operations are resolved, remain among the most important political and constitutional questions in contemporary politics. Ironically, however, these are questions that existing political science scholarship in American politics is woefully unprepared to answer.
The Politics of Initiating War versus Waging War
Virtually every prior study of the dynamics governing American uses of force abroad has focused exclusively on the politics driving the initiation of a military action. As a result, the existing literature has paid scant attention to the impact of various factors—from reactions in Congress to swings in public opinion to changing conditions on the ground—on a joined action's subsequent conduct and eventual termination.
When constitutional scholars discuss war powers, they begin and all too often end with the power to initiate military actions abroad. Perhaps no single semantic change at the Philadelphia Convention has received more intense scrutiny than James Madison and Elbridge Gerry's motion that "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks." Most legal scribes contend that the constitutional power to initiate military actions resides exclusively with the legislature; even the power to authorize limited military actions is granted to Congress through Article I, Section 8's provisions on letters of marque and reprisal. Revisionists counter that through Gerry's switch and the vesting clause of Article II, the Founders gave both branches the authority to launch military ventures short of total war. In stark contrast to this voluminous literature on the distribution of the power to initiate war, legal scholars have paid much less attention to the balance of constitutional powers to shape the scale and duration of a military venture once begun.
Although more concerned with the political forces shaping policy decisions than with constitutional provisions and powers, use-of-force scholarship in political science has also focused almost exclusively on the political dynamics governing the initiation of major military actions. Citing a string of precedents since the Korean War in which presidents have refused even to consult Congress, much less seek its blessing, before launching major uses of force abroad, most scholars have decried an unambiguous devolution of the power to initiate military actions from Congress to the president, culminated in the "imperial presidencies" of Lyndon Johnson and Richard Nixon. While a number of analyses in the immediate aftermath of the Vietnam War proclaimed a "resurgent Congress" in foreign affairs, assessments of congressional influence in military policymaking again quickly soured. This dour historical appraisal of congressional weakness has only been buoyed in recent years by the aggressive military policies of Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton, all of whom deployed American troops abroad, even into open hostilities, absent any prior congressional authorization.
Finally, even the more empirically focused literature at the nexus of American politics and international relations has shared both this conventional view of congressional weakness and, more importantly, the exclusive analytic focus on the initiation of military actions. At the core of this literature is a host of quantitative studies examining the factors driving the frequency with which the United States uses force abroad. Some scholars, such as James Meernik, explicitly searched for empirical evidence of congressional influence and found little; this led Meernik to assert that the president alone "exercises supreme control over the nation's military actions." 11 This statement is unique in the literature if only for the bluntness, not the tenor, of its assessment of the balance of power between the branches. Many other studies are loath even to afford any attention to Congress, their silence speaking as loudly as any words proclaiming congressional irrelevance.
Recently a growing number of scholars have challenged this received wisdom of congressional impotence in military affairs and have demonstrated that the partisan composition of Congress strongly influences both the frequency with which presidents use force abroad and the probability with which they respond militarily to international crises. These advances by William Howell, Jon Pevehouse, David Clark, and others provide an important corrective to our understanding of military policymaking in the United States, and they assert the continued importance of interbranch politics, even in the martial arena. However, while this new research yields considerable insights into the rich interplay of political forces shaping the initial decision to use force abroad, it tells us little about whether Congress continues to influence the scope and duration of major military operations once launched.
The role that Congress plays in deciding whether a war is continued or concluded is of intrinsic interest to academics, policymakers, and casual observers of contemporary American politics alike. Yet the belief that Congress retains some capacity to shape the conduct of military affairs after a venture is launched is also a critically important and untested proposition underlying most theories asserting congressional influence over the initiation of military action. Why, according to this emerging literature, do presidents facing a strong opposition party in Congress use force less frequently than do their peers with strong partisan majorities in Congress? The most commonly offered answer is that presidents anticipate Congress's likely reaction to a prospective use of force and respond accordingly. Presidents who confront an opposition-led Congress anticipate that it is more willing and able to challenge the administration's conduct of military action than a Congress controlled by their partisan allies. Therefore, the frequency with which presidents use force abroad covaries with the strength of their party in Congress. However, this anticipatory logic requires that Congress has the ability to raise the costs of military action for the president, once that action has begun. If Congress lacks this capacity, presidents have little reason to adjust their willingness to initiate the use of force in anticipation of an adverse congressional response. As a result, determining whether and how Congress can influence the scope and duration of ongoing military operations is critically important even to evaluating prior research that asserts congressional influence over the initiation of military actions. Without it, such analyses rest on shaky ground.
Unfortunately, because the dynamics change dramatically once American troops are deployed abroad, simply drawing lessons from existing studies of interbranch dynamics in military policymaking at the conflict initiation phase and applying them to the conflict conduct phase is unlikely to offer much insight. The decision-making environment at the conflict conduct phase differs from that at the conflict initiation phase along at least three key dimensions: the incentives and constraints governing congressional willingness to challenge presidential discretion; the relative institutional capacities of the executive and legislative branches to affect military policymaking; and finally, the ability of unfolding conflict events to change further the political and strategic environment in which the two branches vie for power.
With regard to the political constraints that limit would-be adversaries in Congress, the president may be in an even stronger position after American troops are deployed in the field. Ordering troops abroad is akin to other unilateral presidential actions; by seizing his office's capacity for independent action, a president can dramatically change the status quo and fundamentally alter the political playing field on which Congress and other actors must act to challenge his policies. Once the troops are overseas, the political stakes for any congressional challenge to the president's policies are inexorably raised; any such effort is subject to potentially ruinous charges of failing to support the troops. Georgia Senator Richard Russell's conversion from opposition to U.S. intervention in Vietnam in the early 1960s to stalwart support for staying the course after Lyndon Johnson's escalation of the American commitment there illustrates this change: "We are there now, and the time for debate has passed. Our flag is committed, and—more importantly—American boys are under fire." Russell's sentiment was loudly echoed forty years later in the allegations by the Bush administration and its partisan allies in Congress that any legislative efforts to curtail the war in Iraq undermined the troops. As a result of these potentially intense political costs, there are reasons to question whether Congress can mount an effective challenge to the policies of the commander in chief. If it cannot, this would compel a reassessment of prior theories asserting congressional influence over the initiation of military actions through the logic of anticipated response. Certainly, more empirical analysis is needed to answer this question.
Congress may, however, have considerably greater capacity to check presidential discretion after a military action has begun than when it is merely anticipated. Particularly since the enactment of the War Powers Resolution in 1973, which critics then and now have charged tacitly recognized the president's extra-constitutional authority to order American forces abroad absent any prior congressional authorization for up to ninety days, Congress is in a weakened position in the lead-up to most military endeavors. Because of the informational advantages enjoyed by the president and his access to unparalleled intelligence resources, Congress frequently finds itself in the dark as initial military decisions are made. Indeed, legislative leaders first learned of impending actions as varied as the 1962 quarantine of Cuba during the missile crisis, the 1983 invasion of Grenada, and the 1986 bombing of Tripoli only hours before, or even after, they began. Recognizing this state of affairs, which perhaps was made necessary by the exigencies of the Cold War and America's role as a global superpower, Congress with the War Powers Resolution effectively delegated the power to initiate the use of force to the president and attempted to reserve ex post facto authority to terminate an action of which it disapproved. In light of this explicit delegation, we must be wary of assessing the extent of congressional power in military policymaking solely in terms of Congress's capacity to prevent military ventures which it does not support, without also examining Congress's ability to retain a check on war powers delegated to the president through its ability to shape the scope and duration of a military action once begun.
Excerpted from After the Rubicon by DOUGLAS L. KRINER Copyright © 2010 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Chapter 1 Introduction: Domestic Politics and Waging War
Chapter 2 Mechanisms of Congressional Influence
Chapter 3 Partisan Politics and the Initiation, Scale, and Duration of War
Chapter 4 Congressional Actions and the Conduct of War
Chapter 5 “Sitting Ducks”: Marines in Beirut, 1982–84
Chapter 6 The Logic of Congressional Action
Chapter 7 Conclusion: Congressional Constraints and the War on Terror