Yemen

Yemen, Iran, and the War Powers Act

The US role in the ongoing war in Yemen violates the War Powers Act. Reasserting Congressional power here is vital to the more general purpose of ensuring legislative control over the initiation of war.

|The Volokh Conspiracy |

Children walk through a badly damaged neighborhood in Aden, Yemen (Giles Clark/OCHA).

Even as  the debate over a possible US confrontation with Iran continues, the US continues to support the Saudi-led war against Iranian-backed Houthi rebels in Yemen. Last month, President Donald Trump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict; the resolution was backed by virtually all congressional Democrats, as well as seven Republican senators and sixteen GOP members of the House.

But Trump's veto of the resolution is not enough to make the US role in this conflict legal. It is still in violation of the 1973 War Powers Resolution (also known as the War Powers Act). That legislation forbids the "introduction" of US forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," for a period of more than 90 days without congressional authorization (an initial 60 day period, followed by an additional 30 day extension). Significantly, the WPR defines "introduction" into hostilities to include  "the assignment of member[s] of [the US] armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities."

While US forces are not directly engaged in combat in Yemen, the Trump Administration itself admits that they have provided intelligence, logistical support, and—at times—even in-flight refueling of Saudi aircraft. As Utah Republican Sen. Mike Lee (a co-sponsor of the Yemen resolution), puts it, "We're literally telling the Saudis what to bomb, what to hit, and what and who to take out." That pretty clearly amounts to US involvement in the command, coordination, and "movement" of Saudi forces—exactly the sort of thing that the WPR forbids, absent congressional authorization.

US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline. Congress has never voted to authorize that involvement. Thus, it is illegal.

Trump's veto of the recent Yemen Resolution does not change that. That Resolution was an exercise of Congress' authority under Section 5(c) of the WPR, which allows Congress to use a "concurrent resolution" to terminate a conflict "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. This enables Congress to end US involvement even if the 90 day WPR deadline has not yet been exceeded. But that deadline still applies to cases where Congress has not passed a concurrent resolution terminating US involvement or the president has vetoed such a resolution (as in the Yemen case). The Trump administration, like the Obama administration before it, remains in violation of the WPR.

At least for the time being, US involvement in the Yemen conflict remains very limited. But that could change over time, especially if the war drags on and the Saudi-led coalition continues to fail to achieve its objectives. In that event, the US could become more seriously enmeshed in the conflict.

This case is by no means the first recent illegal presidential use of war powers. The Obama administration, for example, started an illegal military intervention in Libya, which violated both the War Powers Act and the Constitution (which reserves the power to initiate war to Congress). Obama also started—and Trump continued—the war against ISIS without proper congressional authorization. But the fact that illegal US involvement in the Yemen conflict is not a unique case doesn't make it right. To the contrary, the ongoing nature of the problem makes it all the more important for Congress to reassert its control over the initiation of war. The Yemen resolution was a step in the right direction. But Congress can and should do much more.

The issue is more than just a matter of technical legality, of interest only to legal scholars. Legislative control over the initiation of war prevents that decision from falling under the control of any one person, and ensures that we only enter a conflict if there is a broad political consensus in favor of doing so. Along with others, I did what I could to to make that case during the Obama years, and it remains just as valid today.

Meanwhile the Yemen War continues, having already killed an estimated 67,000 people, and created millions of refugees.  The principal blame for all that death and suffering rests with the combatants. Both sides have committed their share of atrocities. But US support for the Saudi-led coalition has helped make the situation even worse than it might be otherwise. And we have little, if any, benefit to show for it. Certainly none that even comes close to justifying the enormous human cost of the war. That is morally problematic in itself, even aside from the possibility that the US could become more deeply involved in the war.

There is plenty of room for reasonable disagreement over how best to deal with the danger posed by Iran. I am very skeptical that all-out war is the right approach. But I am also somewhat more hawkish than many other libertarians, and more open to various types of military action than many of them.

But regardless of the specific policy in question, we should be able to agree that the US should not initiate war without proper legislative authorization. For the moment, President Trump seems to have overruled his more hawkish advisers and tried to pull back from military confrontation. But that decision should not rest in the hands of the president alone. As James Madison put it, "the trust and the temptation would be too great for any one man."

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66 responses to “Yemen, Iran, and the War Powers Act

  1. “US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline.”

    Doesn’t Trump also get 90 days? That would justify half a year of “involvement”. Plus, if Obama (good) and Trump (evil) do the same thing, doesn’t that cancel out the wrongness of it all? Both sides are guilty so no one really cares.

    Considering how Democrats are gleefully working to violate the Bill of Rights, how persuasive is their argument against violating a Federal law?

    1. “Both sides are guilty so no one really cares.”

      Americans are not either Democrats or Republicans. This country does not exist for two accidental political parties to one-up each other on improvident decisions.

      “Considering how Democrats are gleefully working to violate the Bill of Rights, how persuasive is their argument against violating a Federal law?”

      What, in your view, is the connection between an argument against violating Federal law, and Democrats’ purported violation of the Bill of Rights?

    2. Tell, Ilya that it will generate more refugees that will slip into the border without and vetting and he’ll be all for it.

  2. Quoting James Madison is very much on point. The Founding Fathers knew exactly the dangers of allowing the executive to start wars and it was by the most careful and deliberate intent that they bestowed that power solely on Congress. Their reasoning is still sound.

    1. Modern society should not be bound by elitist slave owners from hundreds of years ago.

      1. Seeing as we should come to some sort of agreement on what we should be bound on as a pre-requisite for being a society, and a majority still feel that the Constitution works overall despite some shortcoming, you’re sorta out on a limb there.

      2. Then modern society needs to get off its ass and modify the Constitution.

      3. What, from this line of reasoning, do you believe we should reject now, and why?

        “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.”

  3. It’s another illustration where none should be required that blurring the line between legislation and explicitly delegated constitutional powers is unwise—in the case of the power to declare war, it is folly. Nothing but trouble has come to the nation from bestowing upon the president months-long intervals of immunity from war-power oversight. Presidents can use those opportunities opportunistically, and they have.

    It is too bad it is Trump in this case who needs the push back, because doing it will further conflate in right wing minds political partisanship with what needs to be done to protect constitutional legitimacy. But “too bad” situations are what you get with Trump.

    The war power in congress did not go away because congress passed a law. The House needs to tell Trump that veto or no veto, that absent a declaration of war, if he continues war activity in Yemen, or initiates it in Iraq, or anywhere else in the middle east, or in the world, he will be impeached.

    Somin has been right about this all along.

    Maybe partisan fury has legitimate uses. If it results in restoring practical oversight of war initiation to congress, then it will have proved useful indeed.

    1. How many things now has Trump done worthy of impeachment?

      Do you really think that the WPA is the hill that he’s going to die on? Congress is too partisan and too impotent to care about the violation of the Constitution anymore, as long as it’s the “right” party doing it.

  4. I was about to suggest that right wingers who want to give Trump a free-hand war making power ought to reflect what would have happened if a President Douglas MacArthur had been elected instead of Eisenhower. But then I remembered that nuclear war in China was what the right wingers of 1953 preferred, and MacArthur was just the person to give it to them. In response, Russia would have attacked in Europe, or worse, joined China to use nuclear weapons there, in China’s defense.

    Constitutionalism that relies on political happenstance to prevent holocaust is folly.

    1. Um, Medal of Honor wining 5 star general who developed the ultra successful “bypass” strategy and launched the brilliant Inchon landing versus photographer who comments on the internet.

      Who had a better grasp of war? Its a mystery.

      1. A decision to attack China would have had nothing to do with military strategy or tactics. It was a political question, on which MacArthur had no great credentials.

        Do you think the US should have bombed China?

        1. We should have launched a strike against the USSR the moment they obtained atomic weapons.

          In 1950 according to wikipedia we had 299 nukes versus 5 for the USSR. USSR had no delivery system to hit the US mainland either

          It would have been over in an afternoon. No Korean War, no Vietnam War, no expensive nuclear arms race, a freed Eastern Europe in 1949, not 1989.

          1. No United States, either. Great plan.

            1. 5 Russian nukes in 1950. Less right after they developed the first one.

              After our first strike, they may have not even survived. Assuming they do, who orders their use? How do they reach the US?

              Japan, a much smaller country, survived 2 so even if all 5 somehow hit the US mainland, I think we would have survived.

              1. As always, I am grateful to the Volokh Conspiracy for exposing unvarnished right-wing views — of the type generally expressed mostly at militia gatherings, Republican Committee meetings, gun bashes, and Unite The Right rallies — to a broader audience.

                1. We feel the same way about you, when you expose the unvarnished opinion of crazed leftist progressive loons (but I repeat myself) who want demographic replacement and who look down their noses (ironically) at middle America.

                  1. You’re worried about the Jews replacing you?

                    1. Me? Naw. As Bernstein has pointed out, the only Jewish groups that are not going to be non-existent in two generations because they don’t intermarry are the Orthodox and/or conservative Jews, and those guys are pretty cool, and look good in black.

                      And you don’t understand, further, the “Jews will not replace us” meme comes from the idea that Jews are behind the importing of 3rd worlders to replace the white majority. Are Jews behind it specifically? Naw. But in the U.S. at least Democrats are, like the Rev, are, because they need client groups, as as are crony capitalists, because they like cheap labor.

                    2. Bullshit, m_k.

                      The Democrats are not trying to import “client groups.” You’re pulling a Bellmore here, ascribing the worst possible motive to those you disagree with.

                    3. Well, nice to see that you’re open to the idea, rather common, unremarkable, and I’ll admit even “conventional wisdom,” that the Democrats want more people on the dole and Republicans cheap labor.

                      Please don’t tell me that the reason that Democrats want an almost open border is their big hearts, because they could have used those same warm feelings for their actual countrymen first, or that perhaps more foreign aid could have been used first.

                    4. Oh right. The GOP is full of compassion.

                      How many moons does your planet have?

                      And WTF makes you think the Democrats want more. people on the dole? A commonplace view among gullible fools who watch Fox, maybe.

              2. I wasn’t suggesting that the US would be destroyed by nuclear retaliation.

          2. We should have not stopped in Germany in 1945, but gone East right on through to Moscow and then to Siberia and met up with forces coming west out of an occupied Japan. Germany was on the right side of history on their Eastern Front.

            1. Right side of history.

              You think it would have been good if Germany had conquered the USSR?

              Because Eastern Europe, not to mention chunks of the west, would have been such a great place under Nazi rule.

              Fuck you, m_k.

              1. No, I am saying that Stalin was worse than Hitler, which is not an uncommon or unusual or shocking comparison. I’m not saying Hitler was by any means a good guy either. This requires a level of thinking that is at best, not an inch deep. Perhaps you’re capable of it, you’re response will show me one way other another.

                Moron, I also say that *after* we conquered Germany, we should have gone East.

                1. Stalin was worse than Hitler,

                  Quite a contest. I don’t think I’ll take sides there. So you would prefer that the Nazis had dominated Eastern Europe, which they would have?

                  And what do you think would have happened had the US marched on Russia after Germany surrendered? Would our allies have joined in? Would we have installed a constitutional democracy in Moscow? Doesn’t seem too realistic to me, not to mention that successful invasions of Russia have historically been, shall we say, rare.

                  Moron? You’re the one who wishes Germany had defeated the USSR. Then what?

                  1. Okay, I’ll take the bait. In a counterfactual world, where Germany did *not* declare war on the U.S. and we were only fighting Imperial Japan after Pearl Harbor, we should have remained neutral to the Eastern Front. Remember, the USSR, did not side with us against Japan, so why should we have sided with them against Germany. The USSR’s involvement against Japan was just at the very end in order to gobble up some territory, they did not join in the slog.

                    Would our allies have joined us in attacking Russia? Likely not, but the USSR may not have been able to defeat Germany without our aid in material either. Admittedly, this is all conjecture.

                    All things considered, when you include all the parade of horribles from both Nazi Germany and Soviet Russia, choosing one or the other is like asking if you want to die by drowning or electrocution, but I think Eastern Europe would have been better off under the Nazis, if only because they didn’t fuck up (much) some of the places that *were* under Nazi occupation, such as France.

                    1. At the very end, and at the very beginning. Google Khalkhin Gol. It was a 1939 battle between the Soviets and Japan which ended up having a major and lasting effect on Japan’s war choices in China and in the Pacific.

                    2. Yea, I forgot about that, there was a sort of undeclared war that both sides walked back from. Thanks. I should have remember it.

                    3. “but I think Eastern Europe would have been better off under the Nazis, if only because they didn’t fuck up (much) some of the places that *were* under Nazi occupation, such as France”

                      Only someone massively ignorant about WWII history would think the standard of Nazi oppression was the occupation of France. The Nazis sent troops to Paris for holiday. They sent death squads to Eastern Europe. There were two very different standards of occupation……

                2. “I am saying Stalin was worse than Hitler”

                  Not sure that’s true… Now neither would what you would consider “good people”. But…. Hitler did a whole lot more “invading and oppressing countries”. Stalin did a little… Hitler did a lot more.

          3. You seem to be advocating for mass murder and genocide… Not a good side to be on.

        2. To be specific, MacArthur technically didn’t want to bomb China’s cities, but use nukes to create a radioactive zone through which Chinese infantry (their only real military effect being human wave attacks) could not pass. I am not sure how much of this radioactive zone would have been inside China’s territory.

          1. mad_kalak, that suggests MacArthur was content to contain communist China, but otherwise not go to war to get rid of it. There is a lot of evidence against any such conclusion.

      2. Bob, because we enjoy the unfair advantage of hindsight, we can all have a better grasp of previous wars than the generals who fought them. In hindsight, we see that MacArthur had a brilliant military career prior to Korea, suffered severe reverses in South Korea prior to Inchon, and after Inchon commanded elite American forces to disaster in North Korea.

        1. Prior to Korea MacArthur also failed to carry out his orders when Japan attacked the United Stated hand lead a disastrous defense of the Philippines.

          1. The defense of the Philippines was doomed from the start.

            A surrender was inevitable. US forces were mainly ill equipped and ill trained Filipinos. With the Pacific Fleet battered, no hope of relief.

            It didn’t help that the Asiatic Fleet commander was old and tired and bad at his job.

            1. The Philippines was a royal screw up by Mac. The fact that somehow 1/2 the airforce was caught on the ground…despite Pearl harbor happening hours before that, and the fact that the generals there knew about it…unacceptable.

  5. At least with respect to ISIS the claim is that it’s authorized by the AUMF. It’s certainly a stretch but it’s at least a plausible argument and in that case the blame lies equally with congress for passing such a broad authorization.

    There are other arguments advanced regarding Yemen and while I don’t find them very compelling it’s also true that Congress has, in a certain sense, acceded to an implausible reading of the war pars resolution in situations involving only air power by allowing multiple administrations to push implausible arguments about how it applies in such circumstances and choosing not to clarify it to the contrary.

  6. “which allows Congress to use a “concurrent resolution” to terminate a conflict “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. ”

    Um, wouldn’t this fall to the same reasoning as INS v Chadha? In order to exercise any real power, Congress has to enact legislation subject to Presidential veto, they can’t just assign themselves new powers, even by legislation. I think there’s another case on the same point, though I can’t recall it at the moment.

    1. This isn’t to say that I think the Executive has constitutional authority to start wars, (As opposed to waging one if the US is attacked…) but this business of passing a law permitting it, and reserving themselves the power to revoke that permission by less than actual legislation, is seriously screwed up from a constitutional standpoint.

      1. You are correct, it has such an issue.

        Though judicially, such a resolution would curtail Commander in Chief powers under the Steel Seizure rubric.

        1. Ah, now I remember the case I was thinking of, and it was still INS v Chadha; It came up in the emergency resolution argument recently.

          Just as the National Emergencies Act wasn’t struck down entire, I don’t suppose the War Powers Act would be, either.

  7. I think this particular example stretches the War Powers Act to breaking.

    The WPA was intended to apply to the US forces being used in active hostilities. Vietnam, Panama, Iraq, Libya, etc. It was intended to avoid another Vietnam escalation.

    This…is not that. This is a proxy war. US forces are not being used in hostilities. They are not entering Yemen. They are not…fighting…for lack of a better word.

    This expansion of the WPA is probably a bridge too far. It would extend the US current support of Ukraine to the WPA, and many other foreign actions that really shouldn’t be accounted for under the WPA. It’s…creep.

    1. Agree with AL.

      We can debate the policy of our involvement in Yemen but without actual combat or even potential for combat (e.g. close support), I don’t see the WPA being a factor.

  8. Or –
    This conflict, and the others since we stopped numbering wars, is not a war subject to the war powers act like requiring a costly license or prohibiting certain firearms is not an infringement of the second amendment.
    The constitution AND passed laws are subject to interpretation as necessary to implement desired policy.

  9. “We’re literally telling the Saudis what to bomb, what to hit, and what and who to take out.”

    The decision still rests with the Saudis.

    Providing intelligence is not exercising “command”.

    1. Agreed, we share intelligence with our allies all the time who sometimes use it to pick targets to attack. That’s not enough to trigger the WPA.

  10. A lot of sloppy assumptions here. Underlying it all is the assumption that the WPA is constitutional. It does raise some small separation of powers issues as well as some minor conflicts with the president’s authority as commander in chief. Has any president ever accepted the constitutionality of the WPA?

    1. I vaguely remember reading that no President has ever accepted its validity.

  11. The WPA was always an exercise of soft power masquerading as statutory authority.

    But that doesn’t mean the WPA lacks all power. It has both political and judicial moment. The OP is the former. Perhaps we shall see about the latter.

    I don’t know how I’d formally divide up warmaking authorities, but by leaving them vague and overlapping, the Founders blew it IMO.

    1. “The Founders blew it IMO”

      Only because you have a weak understanding of the history of the time. Congress controlled the ability to declare war.

      It also (perhaps more importantly) controlled the power of the purse, and specific note was made of how long Congress could pay for the army for at a time. Two years. Again, that’s a very specific time limit in the Constitution, one that really doesn’t exist for any other bill and its designed for Congress to keep control over the army.

      Now, if Congress WANTS to control the army, the method is right there.

  12. I’ve been skeptical of whether assistance to others in war qualifies as making war under the Constitution, but I do agree that it clearly violates the War Powers Act. The only question is whether the act is entirely constitutional. It seems to me that it is and it certainly has the force of law, but that’s always been disputed by the Executive branch.

  13. The “original public meaning” of the word “declare” did not include initiate, start, or make. Presumably some of those voters in the states who ratified the Constitution had access to a dictionary. Hamilton and Madison, may (or may not) have had a different agenda.

    Subject: An universal etymological English dictionary, comprehending the derivations of the generality of words in the English tongue, page 240. (Published in 1740)

    https://archive.org/stream/universaletymol00bail#page/240/mode/1up

    1. ““declare” did not include initiate, start, or make.”

      Still doesn’t.

      Neither does “war” mean all use of military force.

      1. “Still doesn’t.”

        Completely agree but, man, if Congress ever does declare war, we better be dropping Holy Hell somewhere.

        1. Simply put “declare” means make known. It seems to me Congress can “declare” war till the cows come home, but no war (i.e., combat, or battle) is constitutionally required, nor apt to occur, in the absence of a Presidential order.

  14. Prof. Somin may think that what we did in Libya, and are doing in Yemen, constitutes “hostilities,” but Prof. Harold Koh came to the opposite conclusion. Since one of them teaches at a T14 law school, and one does not, I have to go with the superior credentials.

  15. […] offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those of other signers of […]

  16. […] offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those of other signers of […]

  17. […] offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those of other signers of the […]

  18. […] in order to keep the lights on at the Pentagon and to fund America’s numerous, occasionally constitutional conflicts […]

  19. […] in order to keep the lights on at the Pentagon and to fund America’s numerous, occasionally constitutional conflicts […]

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