The Question
Who has the legal authority to threaten war? Not to wage it, not to declare it, not to sign the peace. To threaten. Waxman argues the question is almost invisible in two centuries of war-powers scholarship, even though threats are how the United States exercises military power in almost every case that matters.[1]
“In contemporary American public law, the power to wage war has received extensive attention, while the power to threaten war has been largely ignored, even though threats of force are a more common and consequential exercise of American military power than actual war.”
— Waxman, 123 Yale L.J. at 1628 (2014)
Why This Matters
Iran
Two decades of coercive diplomacy over the nuclear program have been carried through threats and partial signals. The formal war power has not been invoked. The operational war power has.
Taiwan
Strategic ambiguity is a threat posture. Its credibility depends on how adversaries read American political signals, not on any formal Article I action.
Tariff weaponization
Tariffs and sanctions have blurred into the same coercion family as military threats. Trade-power doctrine has the opposite shape from war-power doctrine: Congress has delegated extensively to the President. The blur matters for whether Waxman's framework holds at the edges.
Alliance credibility
NATO Article 5, the Japan-US alliance, and extended deterrence all live or die on the believability of a threat that will, in almost every case, never be executed.
AI-accelerated signaling
Decision loops are compressing. The Schelling-era signaling game assumed time to observe, interpret, and respond. Faster loops change what a credible signal even is.
Figure 1
The frequency mismatch between what war-powers doctrine regulates and what the US actually does
The Claim
Modern American military power is exercised primarily through credible threats rather than kinetic force. The constitutional conversation, frozen on the question of who gets to initiate war, has almost nothing to say about who gets to threaten. Waxman argues that Congress already shapes threat credibility through informal channels (appropriations, hearings, public dissent, political cost) and that those channels do much of the work the formal separation of powers is supposed to do. The framework is a correction to a scholarly blind spot, not a proposal for new constitutional doctrine.
This is a functionalist move in the lineage of Justice Jackson's Youngstown concurrence[2] and Harold Koh's National Security Constitution.[3] Waxman extends the functionalist reading to a specific category of power that neither Jackson nor Koh treated systematically.
The Mechanism
Written as a because-chain:
- Modern military power operates primarily through credible threats rather than kinetic force.
- Credibility requires costly signals that the threatened party can observe and interpret.
- The Executive can generate such signals unilaterally through deployments, statements, and alerts.
- Congress has no formal role in authorizing a threat short of war.
- Congress can, however, raise or lower the perceived cost of backing down through funding decisions, public hearings, visible dissent, and electoral pressure.
- Adversaries who observe those signals update on credibility accordingly.[4]
- The formal Article I power governs a rare ceremonial moment; informal congressional politics shapes the frequent operational one.
Why a 1966 IR text is load-bearing here
Thomas Schelling's Arms and Influence (1966) drew the distinction between brute force and coercion that Waxman imports into the legal conversation.[5] Brute force takes what it wants by seizing it. Coercion changes what the other party wants to do, by making the alternatives worse. Nuclear and modern conventional power sit in the coercive register almost all the time. The threat is the product; the violence is the rarely-used tail.
American constitutional doctrine has been frozen on the brute-force question, the authority to initiate violence, for two hundred years. The bulk of the modern phenomenon it is supposed to regulate lives in the coercive register Schelling named. Waxman's paper is the legal equivalent of noticing the phase change.
Figure 3
The coercion ladder: where US force actually operates
Rungs 4 through 6 are where most US military power actually operates. Those rungs have almost no formal constitutional treatment. Article I regulates rung 9. The War Powers Resolution gestures at rungs 7 and 8. Rungs 1 through 3 belong to routine foreign-policy authority. The middle band, the threat zone, is Waxman's subject.
Evidence & Method
This is a conceptual paper, not a causal-identification paper. Honest labeling matters, so we mark that up front. Waxman combines a frequency claim (threats far outnumber wars), historical case selection (Berlin, Cuba, the Taiwan Straits, Kosovo, the 2013 Syria red line), and borrowed political-science theory (audience costs) to argue for a reframe. His strength is reframing, not measurement.
Identification strategy
No research design. The argument combines a frequency claim (5 declared wars, roughly 200 documented uses of force abroad[6], orders of magnitude more threats, alerts, and deployments) with selected case histories to argue the doctrinal focus is pointed at the wrong tail of the distribution.
Key assumptions
- Foreign governments distinguish between a united and a divided US government when reading signals.
- Domestic political costs discipline presidential threats ex ante.
- “Threat of force” is a coherent analytical category across the cases Waxman treats.
Threats to the argument
- Audience-costs theory is empirically disputed.[7]
- Adversary interpretation of congressional signals is not well measured; the existing work is mixed.
- Personalist autocrats and non-state actors may not play the Schelling-style signaling game the theory assumes.
- The boundary between threat of force, sanctions threat, tariff coercion, and freedom-of-navigation posture is not clean. The live cases sit in the blur.
External validity
Travels well to allied-reassurance contexts (NATO, Japan, Taiwan) and adversary-coercion contexts (Iran, North Korea, Russia). Travels less well to hybrid coercion (cyber, information operations) and to non-state actors where the signaling assumptions weaken.
Doctrinal Voices
Where Waxman's reframing sits in the field. The map below positions five voices on two axes: how they read doctrine (formalist vs functionalist) and which branch they think holds the power in practice. Click a dot to jump to the matching card.
Figure 2
Where the five voices sit: method (how to read doctrine) × allocation (who should hold the power)
What Would Falsify This?
Four candidates, in order of impact on the argument's load-bearing structure.
Audience costs fail empirically
If domestic political costs do not discipline presidential threats, the informal-constraint story loses its load-bearing element.
Evidence that would move the posterior:Downes & Sechser (IO 2012) and Snyder & Borghard (APSR 2011) already question the empirical basis. A stronger version of that critique, with wider case coverage, would put Waxman's reassurance claim in serious trouble.
Adversaries do not read congressional signals
If foreign decision-makers treat the United States as a unitary actor regardless of congressional posture, the informal channel does no work.
Evidence that would move the posterior:The adversary-perception literature (Baum, Potter) is mixed and under-powered. A well-identified study of how foreign leaders actually weight domestic US politics when pricing a threat would be decisive.
Modern coercion breaks the signaling model
Personalist autocrats, non-state actors, and AI-accelerated decision systems may not play the Schelling-style signaling game the theory assumes.
Evidence that would move the posterior:Evidence from the post-2014 period suggests the signaling environment has changed in ways the 2014 paper does not address. Demonstrating systematic breakdown in specific adversary categories would shrink the frame's generality.
"Threat of force" is not a stable category
If tariff coercion, sanctions threats, and freedom-of-navigation operations cannot be bundled with military threats, the claim shrinks to a narrow historical range.
Evidence that would move the posterior:This is where the live cases sit. The blur between coercive instruments is not a bug in the paper but a live research question. Evidence that adversaries treat these as meaningfully different categories would force Waxman's framework to narrow.
So What?
Waxman's portability is narrow and load-bearing. The framework travels cleanly to two specific contexts. In allied reassurance (NATO, Japan, Taiwan), the credibility of an American security guarantee depends on whether adversaries and allies both read the domestic political signals correctly. In adversary coercion (Iran, North Korea, Russia), the signaling game Waxman describes is the substrate. In both, the informal channels he identifies (funding, hearings, public dissent, political cost) are the actual constitutional conversation the field has underweighted.
Where it travels less cleanly: hybrid coercion (cyber, information operations) and non-state adversaries. The signaling assumptions weaken when the actors are not states playing a public game. Waxman does not claim otherwise, but the field often quotes him as if he had.
The paper sits in direct conversation with two others on this site. Compare Hathaway & Shapiro on outcasting, which argues that much of international-law enforcement runs through exclusion rather than violence. Waxman is the domestic complement: most American military power runs through threats rather than force. Compare also Goldsmith & Levinson, who argue that international law and constitutional law face the same structural problems. Waxman shows one of those problems (enforcement against the executive) in close-up inside constitutional law.
Editor's extension · Jenn's reading, not Waxman's argument
Waxman does not make this next move. The site does. War powers are one instance of a general pattern: a 1787-era institution regulating a phenomenon that has transformed beneath it. Labeling this extension explicitly keeps observation and inference separate.
| 1787 text | Original phenomenon | Modern phenomenon |
|---|---|---|
| Declare War | Inter-state armed conflict | Coercive threat, sanctions, strategic ambiguity |
| Commerce among the several States | Physical goods, shipping, tariffs | Data flows, platforms, attention markets |
| Cases and Controversies | Discrete private disputes | Supervision of the administrative state |
| Lay and collect Taxes | Tariffs and excise | Transfer programs, refundable credits, economic steering |
This is a question, not a proposal. Amending the document is one answer. Rebuilding constitutional practice through functionalist readings like Waxman's is another. The drift is the observation. The remedy is the open question.
Adjacent questions · Where the frame might travel next
Waxman stays inside constitutional war powers. The signaling frame he borrows from Schelling is bigger than that, and several questions follow immediately from his argument that he does not answer. A reader from securities, corporate, or financial regulation will probably meet these before they finish the paper.
Private-party coercion
Hostile-takeover threats, activist-investor letters, and litigation-threat playbooks all run on the same credibility dynamic. Who has the practical authority to make a credible threat when the threatener is a firm or a fund rather than a state? The nearest musings on this site are Lina Khan on Amazon and Ohio v. American Express.
Regulatory enforcement credibility
The SEC's threat to prosecute is itself a signaling game. Audience-cost dynamics likely discipline agency threats too: deferred prosecution agreements, selective enforcement, and enforcement backlogs all move the perceived cost of calling a regulator's bluff. Waxman's framework would apply almost line for line.
Benchmark manipulation
The Libor and Forex scandals were, at one level, about private actors coercing an index. Schelling's coercion-versus-brute-force distinction applies cleanly: the manipulators did not seize a market, they signaled into it. Much of contemporary research on benchmark integrity sits in this terrain and reads naturally as the financial-markets analogue of Waxman's constitutional argument.
Market-moving statements
Fed communications, central-bank forward guidance, and Treasury jawboning all share the structure of the war-powers threat. There is no formal declaration, but there is a credible signal, and markets price it. The open question is whether informal congressional channels discipline those signals the way Waxman argues they discipline military threats.
These are the adjacencies. A careful reader from securities, corporate, or financial regulation could pick up the frame and walk it into any of them. The related musings on antitrust and platforms are the closest neighbors already on the shelf.
Through a securities-law lens
The securities-law record gives us concrete cases of the mechanism Waxman is pointing at in war powers. The parallel is not that the two fields disagree; it is that the same mechanism shows up in both, and the markets cases make the mechanism easier to see. Read this table as a magnifier, not as a counterpoint.
| Waxman asks | What it looks like in markets |
|---|---|
| Who has the legal authority to threaten war? | Who has the legal authority to issue a market-moving signal? |
| Do audience costs discipline the Executive? | Do audience costs discipline benchmark-setters, rate panels, the Fed, or the SEC itself? |
| Is “threat of force” a coherent analytical category? | Is “market manipulation” a coherent category, or does the blur between spoofing, jawboning, and benchmark-setting repeat the same problem? |
| When informal channels constrain the Executive, does that constraint count as constitutional law? | When informal market discipline constrains a benchmark-setter, does that constraint count as regulation? |
Three places in the securities-law record where Waxman's mechanism is visible in concrete cases:
- Benchmark integrity (Libor, Forex). The scandals were private-party coercion of an index without a formal rule about who sets it. Waxman's informal-channel account of congressional constraint on executive threats is the constitutional twin of contemporary accounts of market discipline on benchmark-setters.
- The Salman personal-benefit standard. What the law does when the formal doctrine has no clean category for a kind of signal (a tip, a wink, a quiet favor). Waxman's functionalist move is the war-powers version of the same problem: the doctrine does not name threats, so threats operate outside doctrinal reach.
- The legal function of motive. Audience-costs theory assumes observers can infer executive motive from political context. The corporate-law literature on motive is the doctrinal machinery for how courts actually do that inference, and when they get it wrong.
None of this is a stretch. It is the same mechanism at two different altitudes: constitutional law at the state level, securities law at the firm and market level. The markets record is the richer evidence base for what Waxman is arguing in war powers.
The Clean Takeaway
War-powers doctrine regulates a rare ceremonial act while the operational reality runs through threats the doctrine barely names. Waxman does not solve that gap. He makes it visible. That alone is a large enough contribution to change what the scholarship counts as the subject.
Sources
Matthew C. Waxman, The Power to Threaten War, 123 Yale L.J. 1626 (2014).
Thomas C. Schelling, Arms and Influence (Yale Univ. Press 1966).
James D. Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Am. Pol. Sci. Rev. 577 (1994).
Kenneth A. Schultz, Democracy and Coercive Diplomacy (Cambridge Univ. Press 2001).
Alexander B. Downes & Todd S. Sechser, The Illusion of Democratic Credibility, 66 Int'l Org. 457 (2012).
Jack Snyder & Erica D. Borghard, The Cost of Empty Threats: A Penny, Not a Pound, 105 Am. Pol. Sci. Rev. 437 (2011).
Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (Yale Univ. Press 1990).
Louis Fisher, Presidential War Power (3d ed. Univ. Press of Kansas 2013).
John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Univ. of Chicago Press 2005).
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring).
Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798–Present (running report).
Continue · Part II of the War Powers Diptych
The Operational Code of Competence →W. Michael Reisman's international-law complement. Where Waxman asks who has the domestic constitutional authority to threaten, Reisman asks who holds the legally recognized competence to use force under the UN Charter regime.
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