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.
