Politics & Policy

America’s War in Yemen Is Plainly Unconstitutional

President Donald Trump listens as he meets with Danny Burch, a former hostage in Yemen, Washington, D.C., March 6, 2019. (Jonathan Ernst/Reuters)
The president’s veto of a bipartisan resolution demanding the end of American involvement in the conflict further degrades our constitutional architecture.

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.

Something to Consider

If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?

If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.

LEARN MORE

Most Popular

Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
White House

Nancy Pelosi’s Case

Further to the post below, a couple of thoughts on Nancy Pelosi’s statement yesterday. She said this near the beginning: During the constitutional convention, James Madison, the architect of the Constitution, warned that a president might betray his trust to foreign powers which might prove fatal to the ... Read More
White House

Nancy Pelosi’s Case

Further to the post below, a couple of thoughts on Nancy Pelosi’s statement yesterday. She said this near the beginning: During the constitutional convention, James Madison, the architect of the Constitution, warned that a president might betray his trust to foreign powers which might prove fatal to the ... Read More