discussing original insights about the limits of the president's war powers); Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. hereafter Nzelibe, Congressionally Authorized Wars] (using a positive approach to analyze the division of war authority between the executive and legislative branches); Jide Nzelibe, A Positive Theory of the Constitution of War Powers, 91 IOWA L.
Reactive Devaluation
Reactive devaluation suggests that leaders will be less likely to embrace opportunities to peacefully resolve a conflict than is rational simply because their adversary has sponsored the proposed solution. However, note that the research itself also suggests one solution to this problem: third parties.
Psychic Numbing and Psychic Priming
When a third party proposed the disarmament solution in the earliest studies of reactive devaluation, individuals rated the policy much higher (and, we can infer, more neutral) than when the opponent proposed the solution.90 In the context of military power, it may be that the participation of third parties, such as neutral states or the UN, could be useful in mediating conflicts. But in other tragic episodes, such as the genocide in Rwanda and ethnic cleansing in the Darfur region of Sudan, there was no such action. Of course, if a political judgment is made that the US places zero value on saving foreign lives, psychological stunning would not result in "wrong" policies.
On the other hand, the fact that we tend to respond more naturally to images of suffering individuals than to statistics of mass atrocities may cause a psychological priming bias that cuts in the other direction.98 Since the 1990s, media scholars in particular studied so-called. Critics of this theory have responded that the media rarely drive interventionist narratives alone.
Group Polarization
Professors Glaeser and Sunstein have modeled another driving force behind polarization, showing that individuals are likely to be “[c]redulous Bayesians,” rather than “rational Bayesians.”2 Rational Bayesians learn from other members of the group, using new information and arguments to update their personal views.113 Gullible Bayesians, on the other hand, “treat offered opinions as unbiased and independent and fail to adapt to the sources of information and stimuli of the opinions they hear.”114 In other words, they fail not aware of the fact that the information others give them may be biased or problematic. The problems of group deliberation – especially the problem of homogeneity in the group's views or background – are of great importance to foreign policy decision-making. If the president's advisers share the same foreign policy worldview (e.g., neoconservative, liberal internationalist, realist), they are more likely to analyze and interpret a situation in the same way—and reach the same conclusions about their recommended course of action. of the action.
The result can be that all of the president's advisers—even if they represent institutional voices that are often at odds with each other—may end up underestimating the same risks, overestimating the same benefits, and skewing the case for or against conflict. One of the claimed advantages of having several individuals involved in decision-making is that collective decisions are perceived better than those made by a single person.
Behavioral Lessons and Methodological Issues
BEHAVIORAL WAR POWERS AND CONTEMPORARY
The Power to Threaten War
OR noting the administration's view that the sequestration defense cuts would have "devastating effects on national security"). But the illusion of transparency suggests that a member of Congress will exaggerate the ability of foreign observers to perceive that these arms purchases are benign (or just cynical as a matter of domestic politics).137 The lesson of the fundamental attribution error is moreover, that the decision to increase spending (or to reject an arms control agreement that is on the table) could be misconstrued by an adversary as a deliberate hostile act, regardless of the actual motivation.138. Like Professor Waxman, we do not mean to say that the wrong branch possesses the power to increase the likelihood of war through military spending decisions.
If we would be concerned that the President could unilaterally influence the chances of war by issuing threats, we should be at least as concerned about Congress's. However, it does not necessarily follow that the current constellation of forces around threats is optimal.
The Power to Initiate War
Congress Versus the President
But viewed in the context of institutional debates between Congress and the president, the aggressive biases suggest a strong functional argument for congressional involvement in the decision to go to war, at least in some circumstances. Even if members of Congress suffer from aggressive biases to the same extent as presidents and their staffs, Congress's involvement in the decision to go to war creates an additional veto (indeed, two vetoes if we consider the House and Senate separately). consider) the time and procedural costs of initiating war.158 These higher costs can help protect against aggressive biases that lead to "bad" decisions to enter conflict. First, participation in Congress cannot mitigate aggressive biases in the case of unified government, when one party controls both the legislative and executive branches.1 59 In these situations, partisanship could trump institutional identity, even given the magnitude of the decision to start a war. .
Second, hawkish biases will apply less strongly to the decision to repel an invasion or attack. But once the question migrates beyond the narrow question of defense against attack and invasion, hawkish biases become increasingly important.
The Scope of "Independent" Presidential War
In essence, the doctrine asserts that the United States, with a minor effort—an effort that does not rise to the level of war—can by itself maintain or restore stability to an entire region of the world. 194 To the extent that the Korea Statement was concerned about the "effectiveness" of the United Nations, id. 34; precedent.”199 Thus, it is possible that future OLC advocates will extend the credibility rationale to NATO, other international organizations,200 or perhaps even to the credibility of US threats.
The possibility of expanding the credibility argument in constitutional doctrine is particularly troubling because it could encourage a behavioral pathology. The role of the United Nations and multilateral coalitions Since the founding of the United Nations in 1945, relations between
The Role of the United Nations and Multilateral
212 Fourth, the "Take Care" argument is that the President can use power without congressional approval to "make sure that the laws" (in this case the UN Charter, a duly ratified treaty and thus law under the Supremacy Clause) are. 213 Of course, even without wading into deeper academic arguments about the applicability of the Take Care clause to treaties,214 a response to this argument is that the UN. Perhaps more importantly, the permanent five's veto power means that China and Russia - countries with different approaches to world affairs than the US - must approve any action.
Not all countries participating in the decision to use force will contribute significantly to the military operation, making them less likely to suffer from the illusion of control or other positive illusions. Leaving aside the example of Libya, the Security Council's continued failure to act has created the idea that some unauthorized interventions may be, as a matter of international law, "illegal but legitimate."22 1 Closest Ally United States military. it has even dropped the "illegal" qualification and asserted a unilateral right to humanitarian intervention.2 22 For our purposes, what is important is not the forum itself, but what it tells us about the quality of the underlying decision-making.
The Power to Fight and Terminate Wars
Limitations on Scope, Means, and Methods of
227 For example, despite the limitations adopted in the Lebanon Resolution, President Reagan stated that he would not interpret it "to revise the President's constitutional authority to deploy United States military forces." Ronald Reagan, Declaration on the Signing of the Multinational Force in Lebanon Resolution, 2 PubB. But the lessons of psychology warn that, after hostilities have begun, there is a unique danger in entrusting the president to make all such decisions alone. Consider the hypothetical Hamburger Hill legislation in the context of prospect theory and the sunk cost fallacy.
President Bush's legal advisers asserted the well-known executive authority, rooted in commander-in-chief authority, to override congressional restrictions on the use of torture and ill-treatment of wartime detainees.232 Like the Hamburger Hill hypothetical, this debate involved acts of Congress. involves taking away a war-fighting tactic from the President. The first law concerned existing prohibitions on torture (through the Convention Against Torture) which OLC expressly claimed was unconstitutional as applied to the interrogation of enemy combatants ordered by the President pursuant to his commander-in-chief power.
The War Powers Resolution and Ending Wars
One of the dangers of placing military forces in one branch of government is the possibility of groupthink. While the conventional wisdom is that the possibility of a concurrent resolution is constitutionally suspect, proponents of the war powers resolution argue that it is not governed by Chad because of the uniqueness of the war powers context. Involving independent third parties in war and peace decisions could mitigate some of the behavioral biases identified in this article.
First, war powers can be designed to allow the legislature to revoke authorization of the use of force or to affirmatively end war with fewer institutional barriers. In this light, perhaps the most modest (and constitutionally realistic) implementation of the Ellsworth-Mason approach would be for Congress to simply refuse to consent to the Chadha decision and, if ever appropriate, a corresponding resolution under Article 5( c) to adopt. ) of the War Powers Resolution.
BEHAVIORAL WAR POWERS AND INSTITUTIONAL
War Powers in Context
It might be better, then, to consider how the constellation of powers, checks and balances might be designed to be more sensitive to each particular context. First, institutional designers can consider the type of action—for example, defending the nation, preventing a perceived threat, offensive warfare, or humanitarian intervention—when thinking about powers, checks, and balances. The willingness to take risks to recover a lost territory - as in the case of the Falklands - is more likely to be driven, in part, by a prospect theory bias.
Second, as our doctrinal discussion demonstrates, we may want a different constellation of powers, checks, and balances based on the different stages of conflict, such as threatening, starting, waging, and ending wars. Analysts may differ on what composition of powers, checks and balances is appropriate in each context.
Institutional Design Strategies
- Improving Information
- The Design of Internal Decisionmaking
- Vetogates
- The Role of Independent Third Parties
- The Ellsworth-Mason Approach
For a discussion of the debian possibility of education and training, see Larrick, supra note 248, at 326. From the social conformism of Asch's experiments269 to short-sighted Bayesianism,270 groups of individuals often. As we have discussed, presidents have carefully (but rarely fully) sought the approval of the United Nations or the participation of multilateral coalitions when seeking to use force without congressional authorization.
Thus, if the president's decision to use force is ratified by the United Nations or if a broad coalition participates in the operation, passage through that veto gives more confidence in the reliability of the decision to use force. 317 Emergency powers will be granted for a period of months, and any reauthorization of the emergency.
