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The U.S. and British forces have launched a massive retaliatory strike against the Iranian-backed Houthis in Yemen (1/12/2024). The military response by the U.S. and U.K. comes after a series of drone and missile attacks on commercial ships by the Houthis. (Source: U.S. and U.K. conduct strikes on Houthi targets in Yemen to retaliate for spate of attacks).

These attacks had been a persistent issue, and the recent escalation saw the Houthis firing one of their largest barrages against cargo ships in the Red Sea, prompting a significant naval engagement by U.S. and UK forces. (Source: U.S., U.K. Warships Shoot Down Houthi Barrage in Red Sea)

Two U.S. officials made remarkable statements on the attacks on Yemen:

U.S. REPRESENTATIVE RO KHANNA, DEMOCRAT, CALIFORNIA "The President needs to come to Congress before launching a strike against the Houthis in Yemen and involving us in another Middle East conflict. That is Article I of the Constitution. I will stand up for that regardless of whether a Democrat or Republican is in the White House."

U.S. REPRESENTATIVE VAL HOYLE, DEMOCRAT, OREGON "These airstrikes have not been authorized by Congress. The Constitution is clear: Congress has the sole authority to authorize military involvement in overseas conflicts. Every president must first come to Congress and ask for military authorization, regardless of party." U.S. REPRESENTATIVE JASON CROW,

Source: Reactions to US, British strikes against Houthis in Yemen

Is the military response to Yemen opted by President Biden without conferring with congress unconstitutional, and if this is the case, what legal action may follow as a result?

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    How is this different than any other strike that a president has ordered in the past?
    – Joe W
    Jan 12 at 1:48
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    By a common sense reading of the constitution it's unconstitutional, but it's common practice, and the Supreme Court has not ruled it unconstitutional. Posting this as a comment because a real answer needs proper sources.
    – Peter
    Jan 12 at 1:51
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    There is ample precedent for some level of US military activity being ordered by POTUS with limited congress oversight. That's been an ongoing tug of war for a while and I don't see what makes this situation exceptional in any way shape or form: plenty of POTUS have "had things shot up". Second, from a constitutional PoV, the South Africa vs Israel stuff has nothing to do with this, so there is nothing "interesting" about it. Are you trying to line this up with genocide claims, somehow? "Two US officials", is really more "2 US congress ppl", grandstanding a bit and expressing an opinion Jan 12 at 1:52
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    Perhaps better suited on Law.stackexchange.com
    – user103496
    Jan 12 at 2:25
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    Nice demonstration when rule-based order is more then the International Law and the US constitution. Jan 13 at 0:16

1 Answer 1

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Is the military response to Yemen opted by President Biden without conferring with congress unconstitutional

This argument has been made almost every time the U.S. has used military force without a formal Congressional declaration of war.

For example, the issue was hotly discussed in the days leading up to the Congressional authorization of the Gulf War in 1991 (because the President had hinted that he might begin this military action without the Congressional backing that he later secured), when I was asked to research the issue for a member of the U.S. House of Representatives while I was a Congressional intern for him.

Respectable legal scholars and politicians have argued that Congress had a duty to authorize many military actions where its prior consent was not sought.

But, this argument has never been successful in a court of law.

Some of the historical practice is summarized in a recent law review article.

Legally, the difficulty is that, pursuant to the first clause of Section 2 of Article II of the U.S. Constitution: "The President shall be Commander in Chief of the Army and Navy of the United States[.]"

In this capacity, the President has the authority to direct the conduct of the U.S. military. The President is also the chief official responsible for conducting U.S. foreign policy.

Distinguishing between non-war day to day operations of the U.S. military and a "war" is not trivial and treads into the territory of the political question doctrine. Not all military action by the U.S. military constitute a "war."

In this case, U.S. ships have been fired upon, as have commercial ships in the area, in furtherance of acts the constitute piracy under the United Nations Convention on the Law of the Sea, a multilateral treaty, by the Houthi militant faction in Yemen, using advanced missiles and drones supplied to them by Iran.

The U.S. Navy has statutory authority under U.S. law, which has been on the books in one form or another since 1819, to use force to suppress piracy (whose historical use is explored in links here). One paper on the topic notes that "naval operations to suppress piracy usually involved landings and assaults ashore."

Statutorily authorizing the U.S. Navy to suppress pirates without prior Congressional approval for each particular military campaign against each particular band of pirates is something Congress has been expressly granted the authority by the U.S. Constitution to allow the U.S. Navy under the direction of the U.S. President to do. And Congress has, in fact, used this constitutional authority to authorize to the President to do so.

Congress authorized the President to unilaterally use military force against pirates under a different provision of Article I, Section 8 of the U.S. Constitution than the one that authorizes Congress to declare war. The pertinent provisions of that section state:

The Congress shall have Power To . . . define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; . . . And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The U.S. Navy also has the statutory authority to use force in self-defense, without the prior approval of Congress of any particular act it takes in self-defense.

This is basically how President Biden has justified this action, as reported by the Associated Press today (via the Denver Post):

President Joe Biden said the strikes were meant to demonstrate that the U.S. and its allies “will not tolerate” the militant group’s ceaseless attacks on the Red Sea. And he said the U.S. and its allies only made the move after attempts at diplomatic negotiations and careful deliberation.

“These strikes are in direct response to unprecedented Houthi attacks against international maritime vessels in the Red Sea — including the use of anti-ship ballistic missiles for the first time in history,” Biden said in a statement. “These attacks have endangered U.S. personnel, civilian mariners, and our partners, jeopardized trade, and threatened freedom of navigation.”

These merchant ships have generally not, as falsely claimed by the Houthis, had any affiliation with or connection to Israel.

This matters to the question of President Biden's authority to use force without a Congressional declaration of war or equivalent authorization to use military force, because arguably, if the Houthis were really acting as an armed wing of Palestinians in their armed conflicts with Israel, which probably is part of their motivation even if their actions aren't consistent with that motivation, they would be acting as one side in a war, rather than merely as pirates.

The U.S. Navy may use force without prior Congressional authorization of a particular exercise of this general legislative authority against pirates, but the President is supposed to, at least, invoke the War Powers Resolution protocol when getting involved military in an actual war (although the constitutional validity of this piece of legislation from 1973 is also hotly debated).

But the fact that the Houthis have indiscriminately attacked commercial ships linked to 55 different countries, in the vast majority of cases having no link whatsoever to Israel, undermines the Houthi attempt to claim that they are acting as part of a wartime alliance, rather than as mere pirates against whom the U.S. President has greater freedom to unilaterally use force.

For example, a New Year's Eve 2023 Houthi attack on a commercial ship that U.S. forces repelled (using helicopters to shoot down 3 of 4 ships that were trying to board the merchant ship) was a classic example of modern pirate tactics completely disconnected from any genuine political or military justification.

Legal And Legislative Options

if this is the case, what legal action may follow as a result?

Legislative authority based approaches

Congress could defund the President's actions going forward, or could enact rules of engagement that prohibit the President from authorizing the U.S. military to conduct such operations.

With the U.S. on the brink of another government shutdown for lack of Congressionally approved appropriations bills, Congress is well positioned to use its power of the purse to guide the President's use of force in the Red Sea vicinity if it wants to do so.

Litigation

Congress might have standing to sue to enforce its claimed war powers if the entire U.S. House, or the entire U.S. Senate, by majority votes of each house of Congress, respectively, sought to enforce their alleged rights under the U.S. Constitution in Court.

But, to the extent that there are judgment calls about whether U.S. military action constitutes the suppression of pirates or war, the relevant legal doctrines (including the political question doctrine, and Chevron deference) urge courts to defer to the decision of the President, either entirely, or at least, unless it is a gross abuse of discretion that is not supported by an arguable interpretation of the facts.

For example, "Clinton's actions in Kosovo were challenged . . . as a violation of the War Powers Resolution in the D.C. Circuit case Campbell v. Clinton, [203 F.3d 19 (D.C. Cir. 2000)], but the court found the issue was a non-justiciable political question."

Neither the U.S. House, nor the U.S. Senate, and neither the Democratic Party, nor the Republican Party, however, are eager to take a pro-Houthi (and implicitly anti-Israel) stance in litigation that would draw national attention, in the wake of Houthis directing missiles and armed drones against apolitical neutral merchant ships, and against U.S. warships.

But, realistically, no one else would have standing to sue to prevent the U.S. from acting. In general, one does not have standing to sue merely because one is a taxpayer, or voter, or citizen, if the government acts unlawfully.

Likewise, individual representatives in the U.S. House, or U.S. Senators, lack standing to sue over separation of powers issues, like this one.

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  • It may or may not be true that “The U.S. Navy may use force without prior Congressional authorization against pirates”, but as you point out earlier that is irrelevant since such authorisation has already been granted in the form of legislation.
    – Mike Scott
    Jan 12 at 5:51
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    @MikeScott What I mean to say is that Congress has provided general legislative authorization and therefore doesn't need to provide specific authorization for particular campaigns against particular sets of pirates (which is what those arguing that the strike against the Houthis constitutes a war are saying).
    – ohwilleke
    Jan 12 at 5:54
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    @MikeScott I've reworded my answer somewhat for greater clarity.
    – ohwilleke
    Jan 12 at 5:57
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    For example, a New Year's Eve 2023 Houthi attack on a commercial ship that U.S. forces repelled was a classic example of modern pirate tactics completely disconnected from any genuine political or military justification. is a wrong claim. Yemen is a country and has its own territory. Your are justifying terrorist attack like justifying US Nuclear bombing Japan as "Saved Millions—Including Japanese". That is worse than committing genocide.
    – C.F.G
    Jan 12 at 10:59
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    @C.F.G Even if the attack took place in Yemen's territorial waters, trying to capture a merchant ship by force is literally piracy. Navies of the world have long engaged in anti-piracy actions wherever they want.
    – Caleth
    Jan 12 at 11:20

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