America’s War in Yemen Is Plainly Unconstitutional

David French

Yesterday, Donald Trump vetoed a bipartisan congressional resolution demanding an end to U.S. involvement in Yemen’s civil war. It’s now official: The president who ran for office pledging to reduce military entanglements abroad is involving American forces in a foreign war in direct defiance of the plain language of the Constitution.

First, some background. Beginning in 2015, the Obama administration recklessly inserted itself into Saudi Arabia’s proxy war with Iran, backing Saudi military action against Yemen’s Houthi rebels. America has long been an important source of arms for Saudi Arabia, but Obama’s support went well beyond merely providing planes and bombs. His administration also authorized other active, indispensable support, including aerial refueling and targeting assistance.

This direct involvement represented an act of war by any reasonable measure, and there is no meaningful argument that it was enabled by any existing congressional war authorization. The Authorization for the Use of Military Force enacted after the 9/11 attacks plainly doesn’t apply to Iran-backed Shiite rebels fighting in Yemen (though it does apply to al-Qaeda cells active in the country), nor does the subsequent Iraq War authorization.

Article I, Section 8, Clause 11 of the Constitution grants Congress the exclusive authority to declare war. Yes, Article II declares that the president is the commander-in-chief of the armed forces, but reading the two clauses together, their meaning is plain: The president commands American forces when Congress declares war. Yes, the president has inherent authority to order immediate military actions in times of crisis, but he should also promptly seek congressional approval for such actions.

No one should pretend that there aren’t constitutional gray areas in this structure, of course: How long can a president respond to an emergency before Congress must ratify or reject the conflict? Once Congress has authorized any given action, how far can a president extend or expand a conflict? Does the authorization of force against al-Qaeda extend to, say, al-Qaeda progeny such as ISIS? Does the authorization of war in Iraq extend to actions deemed militarily necessary to stabilize the country, like the use of force in Syria?

These are all good constitutional questions, but they’re beside the point because none of them apply to the conflict in Yemen. President Obama wasn’t responding to a true national emergency in backing the Saudis against the Houthis, and President Trump isn’t responding to a true national emergency in continuing to back the Saudis. They were (and are) waging a new conflict against a new enemy.

Late last year, in the resolution Trump just vetoed, Congress rejected military action in Yemen under the provisions of the War Powers Act, a controversial 1973 statue passed over Richard Nixon’s veto. The Act attempted to answer the thorny constitutional issues outlined above by requiring a president to consult with Congress within 48 hours of the introduction of American forces into foreign hostilities. Congress can then, by resolution, terminate American involvement. 50 U.S.C. Section 1544(c) states that “at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.” (Emphasis added.)

Presidents have opposed the War Powers Act ever since its passage, even as they’ve frequently complied with its terms. They have historically taken such a broad view of their commander-in-chief powers as to functionally write Congress’s war-making power out of the Constitution. If a president can fight when he wants, where he wants, and for as long as he wants, then Article I, Section 8, Clause 11 is meaningless.

Moreover, even Trump’s veto is an unconstitutional act. A declaration of war requires an affirmative act of Congress. A bipartisan majority’s rejection of American participation in the Yemeni conflict is anything but an affirmation. And when the Constitution requires congressional affirmation, then congressional rejection can’t be vetoed by the president.

I understand and support the core holding of Immigration and Naturalization Service v. Chadha, which ended the practice of so-called legislative vetoes — instances where the legislature invalidated executive acts by mere majority vote — but Constitution gives war-making powers explicitly to Congress. When it is construed as allowing the president to launch war on his own and then to continue that war in the absence of congressional supermajorities, the constitutional structure is fatally undermined.

Debates about different American wars are debates for a different time. There is no longer any constitutional justification for continuing American participation in Saudi Arabia’s indiscriminate bombing campaign in Yemen. Congress has spoken. Trump doesn’t have the choice of vetoing the resolution. It’s now his obligation to order American forces to stand down. His refusal to do so further degrades America’s already-shaky constitutional structure.

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