A Positive Theory of the War Powers Constitution


This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic interaction. At the domestic level, once the President decides to initiate conflict, he has an incentive to seek congressional authorization as a form of political insurance for the domestic audience if he believes that the war is going to be fairly long or costly, or if he is uncertain about the immediate prospects of victory. At the international level, the President also has an incentive to seek congressional authorization if he is uncertain about the outcome of the conflict and wants to send a costly signal to the foreign enemy about the country’s resolve to prosecute the conflict. In sum, the ex ante beliefs of the President regarding the outcome of a conflict and the possibility of subsequent punishment by a domestic audience ultimately determine his decision to seek congressional authorization. Finally, this Article also argues that Congress has an incentive to constrain the President’s war-making agenda in the shadow of a politically unpopular war. But while the President often shapes public opinion in his war powers role, Congress tends to react to public opinion when it constrains the President’s war powers initiatives. Rather than follow public opinion and withdraw from a politically unpopular war, the President is more likely to escalate the war and gamble that the course of the war and public opinion will change in his favor. Thus, a presidential decision to withdraw from an unpopular war is more likely to be a result of congressional intervention than a reaction to negative public opinion. This Article uses historical case studies, including the 2003 invasion of Iraq, to test these theoretical arguments.


Constitutional Law | International Law | Law and Politics

Date of this Version

February 2005