The U.S. and Britain have started carrying out strikes against the Houthis in Yemen, according to multiple news reports. And the decision to engage in warfare is not being taken lightly by some members of Congress, including Rep. Ro Khanna who tweeted, “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.” … “Section 2C of the War Powers Act is clear: POTUS may only introduce the US into hostilities after Congressional authorization or in a national emergency when the U.S. is under imminent attack,” the California Democrat went on. “Reporting is not a substitute. This is a retaliatory, offensive strike.”
Conservatives have used the president’s own statement – that didn’t age well – against him, when he attacked former President Donald Trump in 2020 to declare that he did not have the “authority” to launch a strike in Iran. On January 6, 2020, Biden tweeted, “Let’s be clear: Donald Trump does not have the authority to take us into war with Iran without Congressional approval. A president should never take this nation to war without the informed consent of the American people.”
Emulating Khanna, Rep. Val Hoyle (D-Ore.) tweeted, “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.”
Hoyle followed up on pushback and social media disagreement with this statement, “Presidents of both parties have abused the War Powers Act. It’s my job as a member of Congress to be a check within the balance of power even when it means speaking out against members of my own party.”
Adding some clarity to the debate on whether the president violated the Constitution by bypassing Congress is former Congressman Justin Amash who provided this statement via X:
One of the most frequently misrepresented federal statutes—often falsely used to justify unconstitutional presidential war powers—is the War Powers Resolution (or Act) (50 U.S.C. §§ 1541-1550). If only more people would read it. Contrary to what you may have heard about the War Powers Resolution, it does not allow the president to take military action for any reason for 60-90 days without congressional approval so long as the president notifies Congress within 48 hours. Section 1541(c) of the War Powers Resolution states clearly: “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Of the three cited authorities, not one indicates a presidential power to take unilateral (without Congress’s approval) offensive military action.
The first two authorities allow the president to take offensive military action but only with Congress’s express approval (Article I of the Constitution grants Congress the exclusive power to declare war). The third authority allows the president to take defensive military action without Congress’s approval in the event of a specific type of national emergency, a sudden unforeseen attack on the United States (happening too quickly for Congress to meet) necessitating immediate action to protect Americans. It’s for this last situation (or for situations in which the president introduces forces into hostilities unlawfully) that the War Powers Resolution provides for the oft-mentioned 48-hour report to Congress (§ 1543) and 60-day (up to 90-day) timeline (§ 1544). If there’s an attack in progress on the United States (i.e., currently happening), we expect the president to respond swiftly to neutralize the attack and protect Americans—and then we will hold the president to account. The Framers of the Constitution agreed at the debates in the federal convention of 1787 that the president should have the “power to repel sudden attacks” but not the power to otherwise introduce forces into hostilities without congressional approval. The War Powers Resolution does not confer any new authority on the president to take offensive military action without congressional approval—nor could it under our Constitution. It instead checks the president when, as the Framers contemplated, the president introduces our Armed Forces into hostilities to repel a sudden attack.
Adding additional substance to the debate is Classical Liberal Caucus with the X handle, @LP_CLC with the following post:
“Jefferson and Madison both got Congressional approval before attacking pirates in 1805 and 1815. That is the precedent Biden ignores. (Madison sought a declaration of war. He didn’t get it.)”
Amash continued his criticism on X, stating “If President Biden had enough time to form a multinational coalition to plan and conduct strikes in Yemen, then he had enough time to seek and obtain an authorization from Congress as our Constitution requires. Without this authorization, any nondefensive military action is unconstitutional and unlawful.”
Regardless of the technicalities of engaging the United States in nonstop warfare, there will be a price to pay. And if history is worth its weight, it is The People who will carry the heavy burden of our elected leaders’ war games.
