Whether or not the U.S. military should have bombed 16 target sites in Yemen in response to repeated Houthi-led drone attacks on merchant ships in the Red Sea is a topic worthy of debate. This is all the more true considering that this action is leading the United States into direct involvement in a third regional conflict in less than two years.
The question is so important that it should have been considered by the U.S. Congress long before it actually happened. Indeed, that’s what both the U.S. Constitution and the War Powers Act of 1973 require. In short, presidents must receive congressional approval before waging war or using the military to launch any equivalent operation, except in limited defensive and emergency circumstances.
The War Powers Act sought to restore power to the U.S. Congress that Presidents Lyndon Johnson and Richard Nixon had usurped by waging war and escalating U.S. involvement in Vietnam and elsewhere around the world without congressional approval. The stated purpose of the Act was “to fulfill the intent of the framers of the Constitution ... and insure that the collective judgment of both the Congress and the President will apply to the introduction of the Armed Forces of the United States in hostilities.” Seems reasonable enough.
Beyond conducting hostilities previously authorized by Congress, the War Powers Act does give the president leeway in three specific cases. First, to respond to attacks or the imminent threat of attacks upon the United States. Second, to respond to attacks or the imminent threat of attacks against U.S. armed forces anywhere around the world. Finally, and “under proper circumstances, to rescue endangered citizens of the United States located in foreign countries.” Limited unilateral presidential authority was intended to empower the executive to temporarily but forcefully respond to an imminent emergency situation in which Congress wouldn’t have time to convene. None of these exemptions appear to apply to the situation in Yemen.
Indeed, all of this has been disregarded by the Biden administration, which is now trampling the U.S. Constitution under its feet as it rushes to join a third regional conflict with unpredictable outcomes. I have my views but express no opinion here on what the U.S. response to the Houthi attacks should have ultimately been. I’m addressing the illegal process undertaken by President Joe Biden. The United States wasn’t under imminent threat, and there was plenty of time for the administration to engage the U.S. Congress.
As independent journalist Glenn Greenwald points out, the executive branch’s abuse of war powers didn’t begin with President Biden. It was the Bush–Cheney administration that first mastered the art of ignoring Congress—and the Constitution that authorizes it—by unilaterally declaring war against and invading Iraq, based on a drummed-up false narrative that Iraq had, and was preparing to use, weapons of mass destruction against the United States and its allies. This all proved to be lies, but never mind. Undeterred by the rebukes from each of Congress, the public, and the U.S. federal courts, the abuses continued through both the Bush and Obama presidencies in unilaterally initiating and prosecuting military conflicts around the world.
The Founding Fathers feared the risk of a standing military under the power of a president or other leader and went to great lengths to ensure against it. The separation of powers and the granting of war-making authority to Congress was part of the solution to prevent the executive from usurping military power, which the Founders recognized would lead to “tyranny.” The tyrannical powers of an executive (in their experience, the king of England) in control of a standing army were precisely what the founders feared for the future of their own country.
The Federalist Papers, a collection of some 85 writings of the Founding Fathers, including Alexander Hamilton, James Madison, and John Jay, were used to support ratification of the Constitution on these protective grounds. The Federalist is replete with arguments for the restriction of military power by the executive branch and for the separation of powers across the executive, legislative, and judiciary branches. It’s all being ignored today.
It’s true that members of Congress from both houses and both parties have challenged the Biden administration over its unilateral actions in Yemen, but the rebuke has to date been timid and ineffectual. A stronger response by Congress is required, and before it’s too late. We’re moving so quickly up the escalation ladder—and increasingly risking war with Iran—that it’s nearly impossible to keep up with the turn of events. It seems the United States is once again sleepwalking toward disaster. We’d best wake up, and quickly.
