Yemen

Legal Scholars' Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War

A letter signed by a wide range of scholars with different political and jurisprudential views urges Congress to sue to end illegal US involvement in the Yemen conflict.

|The Volokh Conspiracy |

Children walk through a badly damaged neighborhood in Aden, Yemen.

A cross-ideological group of constitutional and national security law scholars recently submitted a letter to Speaker of the House Nancy Pelosi urging her and the House of Representatives to initiate a lawsuit to halt the illegal US role supporting Saudi Arabia and its allies in the war in Yemen. The letter was drafted by Yale Law School Professor Bruce Ackerman, with assistance from the other participants. Signatories include Ackerman, Richard Albert (University of Texas), Rosa Brooks (Georgetown), Erwin Chemerinsky (dean of the law school at UC Berkeley), Mary Dudziak (Emory), Michael Glennon (Tufts), Jon Michaels (UCLA), Mary Ellen O'Connell (Notre Dame), Michael Ramsey (Univ. of San Diego, and one of the authors of the Originalism Blog), Aziz Rana (Cornell), Scott Shapiro (Yale), Ruti Teitel (New York Law School), and myself, among others (institutional affiliations listed for identification purposes only).

Here is an excerpt:

In vetoing Congress' joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law laid down by the Supreme Court's landmark decision in the [1953] Steel Seizure Case. The Court's decision involved a genuine emergency. A steelworkers' strike had halted production, and this led to a dramatic reduction of crucial war materiel required by American troops fighting in Korea. Faced with a clear and present danger to the war effort, President Truman seized the steel mills in his capacity as Commander-in-Chief and ordered the workers back to work. In taking this step, Truman refused to follow specific provisions of the Taft-Hartley Act that Congress had laid out to deal with strikes in national emergencies. He instead declared that, as Commander-in-Chief, he had the power to act independently of the law laid down by Congress. The Supreme Court rejected Truman's assertion of unilateral power as unconstitutional in the Steel Seizure Case…

We call upon you, as Speaker of the House, to initiate a law-suit which calls upon the judiciary to vindicate Steel Seizure in the case of President Trump's military support of the Saudi war against Yemen. President Trump raises the very same constitutional question decided by Youngstown – only this time, it is the War Powers Resolution, not the Taft-Hartley Act, which explicitly prohibits the president from using his power as commander-in-chief to engage in unilateral war-making.

President Trump's decision to support the war in Yemen represents a clear violation of the [1973] War Power Resolution's reaffirmation of the Founder's grant to Congress over the ultimate question of war and peace. Section 8(a)(c) not only grants Congress power to forbid American troops from engaging in "hostilities" involving direct acts of violence. It explicitly defines "hostilities" very broadly to enable the House and Senate to prohibit American armed forces from engaging in actions which "coordinate" or "accompany" the "regular or irregular military forces of any foreign country." Congress was acting well within its constitutional authority in insisting on this broad definition of "hostilities." Given the ease with which military "coordination" with foreign powers can escalate into full-blown war under modern conditions, the Constitution's "necessary and proper" clause gave Congress ample authority to include these indirect forms of military support in order to preserve its ultimate authority "to declare war."

I 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 letter):

[In April], President Donald Trump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict….

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…  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…. 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…, 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.

There is widespread bipartisan concern in Congress about the illegality of this conflict and the very dangerous precedent it sets. That is why the Yemen resolution passed in the first place, with support ranging from conservatives such as Senator Lee, to libertarians like Justin Amash, and virtually all Democrats. Rep. Ro Khanna, Vice-Chair of the House Progressive Caucus likewise supported the Yemen resolution, and now has also endorsed the lawsuit plan.

Unfortunately, widespread concern cannot stop the intervention by traditional legislative means alone, because the president can veto any congressional resolution he opposes, and the veto can only be overriden by an overwhelming two-thirds majority in both houses of Congress. By circumventing the War Powers Act Trump (like Obama before him) has shifted authority away from Congress to himself, ensuring that the default position is that he can continue the intervention, rather than that he must stop it unless Congress gives its affirmative consent. That makes a hash of the Founding Fathers' scheme to ensure that the president cannot enter into new international conflicts without getting advance congressional approval.

A lawsuit could help redress this imbalance by enabling Congress to stop the illegal legislation without having to through a process in which the president can use the veto to shield his power grab. Even though success is far from certain, it is a strategy that deserves to be tried.

Some will likely condemn this strategy because the courts may dismiss such a lawsuit for lack of "standing." That could happen. But, in my view, Congress has a strong basis for standing in cases where the president has appropriated a core congressional power for himself.

In order to get standing to sue, a plaintiff, must prove that it has 1) suffered an "injury in fact" that is "concrete" and "particularized," 2) that there is a causal link between the injury and the defendant's supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Presidential circumvention of the War Powers Act  inflicts a "concrete" and "particularized" injury on Congress by depriving it of its share of control over the deployment of US military forces—an extremely important national asset. In addition, there is no doubt there is a causal link between the president's actions and Congress' injury. And a court can redress the injury by ordering a halt to unauthorized US military assistance to the Saudis and their allies.

Presidential usurpation of congressional war powers is not a new problem. Along with others, Bruce Ackerman and I spoke out against it during the Obama years. The time has come to consider new strategies for reining in the executive in order to ensure that no one person has the power to take the nation to war. As James Madison put it, "[i]n no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…. [T]he trust and the temptation would be too great for any one man…"

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  1. Wouldn’t waging an illegal war be impeachable?

    But to put this in context, there are so many Presidents who could have been impeached under such a nitpicking interpretation of the Constitution, so I guess it’s unfair to single out Trump.

    1. It would be, if the US was actually waging war in Yemen. It’s not. It’s a bad example for the War Powers Act.

  2. In vetoing Congress’ joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law

    I expect better analysis based on the professional bylines of the signing law professors.

    The President’s veto can never be a violation of Constitutional Law. Either the President is required to act (and therefore has no option to exercise his veto) or he is not required to act (and therefore does not violate the constitution).

    Of course, the truth is that this is a political call to arms by people who are comfortable enough to abuse their position for political ends. But we, as lawyers, should expect those who represent our profession to engage in a modicum of analysis.

    1. Actually, the President’s veto power is NOT all-inclusive. Yes, a President can veto legislation passed by both houses of Congress. BUT a President has no constitutional role to play with respect to certain acts of Congress. For example, proposed Amendments to the Constitution are approved only by the House and the Senate under Article V of the Constitution; no action by the President is even necessary. It is true that Article I, Section 7, Clause 3 allows the President to either approve or disapprove (i.e., veto) every Resolution to which the concurrence of the House and Senate may be “necessary”, there is a legitimate question whether the Joint Resolution under the War Powers Resolution in this case was subject to that veto power. Under Section 1544(c) of the War Powers Resolution, which was passed over Nixon’s veto, a Joint Resolution of Congress, even without the consent of the President, is sufficient to command the President to cease all hostilities not supported by a declaration of war or authorization for use of military force. There is a question whether or not that violates the presentment requirement of Article I, Section 7, but that issue has never been resolved.

      1. It’s true that there are Congressional actions a President can’t veto. But for any action subject to the presentiment clause, and that’s most of them with any legal significance at all, Presidents can veto, and a veto in those cases can NEVER be unconstitutional.

        In other cases, the veto isn’t so much unconstitutional as it is irrelevant.

      2. Yes, I agree completely. But the point is the President’s veto is always a discretionary exercise of his executive authority. The President’s veto cannot, as a matter of law, be a constitutional violation as asserted by the signatories of this political manifesto.

        His veto might signal a disregard for Congress’ authority, it might be a bad political decision, it might be dangerous for the country, it could even be irrelevant. But it’s not a constitutional violation.

        I would expect professors of major law schools to be more precise with what purports to be a legal analysis.

        1. Yeah, “purports” is the key point here.

        2. ” But the point is the President’s veto is always a discretionary exercise of his executive authority.”

          But it isn’t.

          If, say, the President offers a treaty to the Senate, and the Senate votes not to ratify, and the President vetoes the Senate vote and announces that the treaty will go into effect…
          That’s not a constitutional use of the veto power.

          1. That’s just idiotic, and not a veto period.

            A veto is for legislation passed by Congress. It’s not for things that “aren’t” passed. The president can’t present a bill or planned appropriation to Congress, have Congress not pass it and then say “I’m going to veto what you didn’t pass, it goes into effect!”.

      3. “Joint Resolution of Congress, even without the consent of the President, is sufficient to command the President”

        The Act does say that but it violates the Presentment Clause based on the Supreme Court’s decision in the line item veto case

  3. Oh, boy. More government by litigation.

    1. I have no objection to government by litigation when the President acts contrary to the Constitution. I had no objection to the lawsuit seeking to stop the Obama Administration from making payments to health insurance companies when there had been no appropriations for such payments, and I have no objection to this litigation, as I see Trump’s action as a usurpation of Congressional control over the power to declare war. I only wish that the Federal courts were truly impartial in deciding these cases. It seems that far too many judges are willing to find that whatever Trump does is either unlawful or unconstitutional (as in the DACA litigation or the Census case), when the same judges bend over backwards to find a legal justification for whatever Obama might have done.

  4. “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.”

    It was equally illegal during the Obama administration. Did they write a letter then? If no, then this isn’t really about the law.

    1. Does not follow.

      Nonetheless, I agree with Somin and the signatories. Congress needs to approve these adventures, and individual members, of whatever party, need to be accountable to the voters for their support or opposition.

      One of the great flaws of our system as it has evolved is the myriad ways members of Congress can avoid having to vote on important matters. I suspect that many like the situation wrt wars just fine, for that very reason.

      Ultimately, we elect these people to vote, not to make speeches or appear on television, or raise money. Make them do their job.

    2. If it was illegal then, it’s still illegal now. The fact that nobody objected when Obama was in office reveals the corruption and hypocrisy of the Democratic Party, but it doesn’t excuse Trump’s continuing the illegal conduct.

      1. Well, I agree, it would be a fallacy to say, “They are hypocrites, therefore Trump is innocent.”

        But it would be a fallacy in the same sense as, “They are reading words randomly selected from a dictionary by throwing dice, therefore Trump is innocent.”

        I’m not arguing their obvious hypocrisy proves Trump innocent, merely that it deprives their claims of any presumption to be taken seriously on the basis of their being “legal scholars”, since it it obvious their claims aren’t motivated by legal scholarship.

        They may have, out of purely political motives, stumbled upon valid claims. I just wouldn’t presume it.

        1. To be clear… these sorts of “letters” seek to trade on the reputation of a group of presumed experts to provide political claims with a gloss of legitimacy. I’ve never been impressed with the genre.

          1. “Presumed” sounds a little pejorative here.

            Are there other experts you’d prefer to hear from?

            1. Ones that complained about Obama’s identical actions?

              Presumed was meant to be pejorative. In the context of these “letters”, they’re generally not acting as experts, but as political partisans.

              Again, I’m not saying they’re wrong, just that their arguments have to be evaluated without any benefit accruing from their status as “legal scholars”.

    3. “It was equally illegal during the Obama administration. Did they write a letter then? If no, then this isn’t really about the law.”

      It depends if the 90 days passed after the prior administration initiated action under the War Powers Act. I’m not sure what the answer to that is.

      1. I recall quite well, because I DID complain at the time. 90 days certainly passed.

        White House Defends Continuing U.S. Role in Libya Operation

        1. We were talking about Yemen. If you’re talking about Libya, yes, many people complained on the same grounds, so your selective enforcement argument is weakened.

          1. “It” was military actions without Congressional approval”, I thought, not “This specific military action without Congressional approval.”

            1. The attack on Libya was by NATO. According to the Constitution, treaties are law. So if one took action under the terms of a treaty, and the other took action without a treaty, then the two cases aren’t similar.

              1. Which part of the NATO treaty specifically overrules the War Powers Act in regards to military attacks in Libya?

                1. OK, I’ll defend the general concept: Treaties do actually override statutes, though not the Constitution itself.

                  But that doesn’t really get you anywhere, because overriding a law delegating to the President Congress’s power to declare war would just leave the President with less power, not more.

  5. If this “cross-ideological” group of law professors had previously written a similar letter regarding Obama’s use of force in Libya, Prof. Somin and his comrades would have some credibility. But they didn’t, and they don’t.

    The plain fact is, the Obama administration established the precedent that bombing other countries is not “hostilities,” and the honorable men like Ackerman and Chemerinsky concurred, and now they don’t like being taken at their word. Maybe they’ll learn the meaning of integrity before they die, although time is running short for some of them.

    1. If this “cross-ideological” group of law professors had previously written a similar letter regarding Obama’s use of force in Libya, Prof. Somin and his comrades would have some credibility. But they didn’t, and they don’t.

      I have no idea what if anything Ackerman or Chemerinsky wrote about the American use of force in Libya. Do you?

      What I do recall is that Ilya criticized it on the same basis (violation of the War Powers Act) that he now criticizes American military intervention in Yemen. And that several regular liberal VC commenters, myself included, agreed with him.

      Would you like any help climbing down from that high horse now?

    2. I agree that this cry de coeur of these self-styled experts is simply more Trump derangement. But it certainly not Obama who established any “precedent” in this area. Bush the Elder invaded Panama and dragged their Presidente, Noriega, kicking and screaming to the hoosegow. He also established and enforced a “no-fly” zone over northern Iraq. Bill Clinton extensively bombed Yugoslavia and later Serbia (including taking out the Chinese Embassy in Belgrade with a cruise missile; bombed Iraq (Operation Desert Thunder, IIRC) over Saddam’s biological weapons programs; bombed Afghanistan more than once; bombed an aspirin factory in the Sudan. Obama of course overthrew whatever government there was in Libya and left behind the mess that is there now. I could go back further, to Reagan, Ike, even FDR. None of these military actions had any prior or even ex post facto Congressional approval. Now comes Trump who has some special forces ops going in Yemen and Mali and so forth who is deemed to be shredding the Constitution and violating established norms. do the writers of these transparent partisan screeds really expect to be taking seriously?

      1. “bombed an aspirin factory in the Sudan.”

        I keep having to point this out: It wasn’t an aspirin factory. It hasn’t even been established that they ever made aspirin at that plant.

        It was a pharmaceutical factory, primarily producing anti-parasitic drugs for the African market. A lot of people likely died, and unpleasantly, due to the shortages that bombing caused.

        It was called an “aspirin factory” in an effort to downplay just how serious what he’d done really was.

  6. I love that the War Power’s Act is being treated as valid law, when it is clearly unconstitutional.

    Congress can declare war, and the President executes it.
    If Congress has not declared war, then the President cannot fight a war.

    The War Power’s Act tries to pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway, for a little while.

    1. Alternatively, the War Powers Act already is Congressional authorization for any war the President chooses, at least for the first 90 days.

      What Congress should have done here, however, was NOT submit it to the President. As a revocation of a declaration of war under the WPA, no executive assent was needed.

      1. How can Congress declare war, but only for 90 days?

        Foreign relations – such as treaties used to end a war – are the province of the Executive. How can Congress preemptively produce a peace treaty with foreign powers, without the Executive submitting it to Congress or the Senate ratifying it?

        1. Congress can condition the war. You have war for 90 days. War doesn’t have to end with a peace treaty. It can end with retreat. Surely you agree Congress can unilaterally revoke declarations of war?

          1. I certainly do not agree that Congress can condition war, or “revoke” a declaration of war.

            Nor do I agree that a war can end through other than a treaty. A retreat is just an end to fighting, not a change in the state of international relations.

            Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.

            1. Ok, well, cool. We disagree.

              “Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.”

              Yes, that’s the point. That’s why the Constitution gave Congress a bunch of power over how the President commands the military, like the power of the purse, declaration, etc.

              1. Yes, Congress has certain specified powers they can use to try to influence the President’s conduct of the war they declared. Those powers are spelled out in the constitution, and “revoking” war declarations isn’t one of them.

                It doesn’t even make sense. Why would there be a need for Senate ratification of peace treaties if the war declaration could just be “revoked” or written to end upon Congress’s whim, with a simple majority vote?

                1. “It doesn’t even make sense. Why would there be a need for Senate ratification of peace treaties if the war declaration could just be ‘revoked’ or written to end upon Congress’s whim”

                  Not being at war and being bound by a treaty are not the same thing, so it’s not a surprise that they would be treated differently.

                  1. A peace treaty is most certainly a binding treaty. Ending a war requires a peace treaty; otherwise there is simply a lull in the fighting that can resume at any time.

                    Playing silly word games with “war” is what got the US into this situation with “police actions” and “AUMF”s. Adding in word games about “peace” doesn’t improve the situation.

            2. “Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.”

              Then the President should veto it if the limitations are too severe, and ask for authorization more to his liking.

    2. “pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway”

      Its not “pretend” to think that there is a range of use of the military.

      Use of military force is not “war” per se. We have been using force without a declaration of war since the undeclared naval war with France.

      Did Congress declare war each time the cavalry went out to fight sovereign Indian tribes?

      1. That’s a terrible example, considering the Constitution allows the Executive to defend the country. Or for the states to defend themselves.

        However, I do agree that not everything is a war, although the “police action” and “Authorization for the Use of Military Force” equivalents are war in everything but the name.
        Single actions probably aren’t “war”. Multi-year operations almost certainly are.

        If Congress disagrees with what the President is doing, then they have tools that do not require overstepping their constitutional limits. They can defund, they can refuse to approve officials that support the President’s policies, and so on. In the extreme case, Congress can impeach.

    3. “The War Power’s Act tries to pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway, for a little while.”

      Such a state exists. It’s that “emergency” state that people were complaining that Mr. Trump declared even though there isn’t actually one at present.

      Here’s an example:
      A foreign nation is beset by violent revolution. The American embassy is overrun, and prisoners taken. The President authorizes military action to retrieve the hostages. That part’s OK, the President has the authority to command the armed forces, to defend American citizens.
      Alas, the initial mission is only partially successful. So the President expands operations, now actively fighting the revolutionaries. There’s no declaration of war, because there’s nobody to declare war on… the revolutionaries are not yet a recognized nation. At some point, the President IS waging war, but IS NOT doing so pursuant to a declaration of war by Congress. The emergency is over, the quagmire is begun.
      Now, since you don’t believe that there’s any intermediary step between lawful Presidential military engagement and illegal, overstepping of Constitutional bounds… where, exactly, did the switch get flipped?

      1. Easy: The minute prolonged operations began (“now actively fighting the revolutionaries”).
        I would also accept an argument that defending the US government’s embassy is defending the country, although that’s a bit weak. I would also accept a reasonable argument that the President’s initial action was unconstitutional in the first place – I don’t see anything in the Constitution about emergency foreign military operations without Congressional approval.

        Incidentally, there is no need for something to be a recognized foreign state in order to declare war on it. It is quite easy to declare war on any non-state group (such as a rebel movement). Not to mention many such groups would be de facto states (See: ISIL).

  7. Lets make a deal Somin, we’ll stop trying to solve their problems over there if you and them agree not to bring these problems over here. Sound fair?

  8. It seems that the Constitution provides a very clear mechanism to resolve this dispute: the Congress does not appropriate the money to fund these operations. If the President vetoes the appropriation bill, then nothing can take place. My guess is that the Supreme Court would say that the Congress has the means to resolve this themselves, they just chose not to do so and as a result the Supreme Court will refuse to become involved.

    1. Allow me to read ahead in the script. The President declares an emergency, and diverts funds appropriated for other things to spend on whatever it is he feels like doing.

      1. Pursuant to a law Congress itself had stupidly enacted, and now cannot repeal without overcoming a Presidential veto. But, still, pursuant to a law Congress itself enacted.

      2. “Diverts funds already appropriated for other things”

        Subject to the limitations in the law, which are numerous.

        1. Why would you assume that President Trump would act subject to the limitations of the law? I certainly didn’t make that assumption.

          1. You may not like how the law is interpreted, but it’s still the law, and it’s still listened to.

            1. In what way are how I like the law interpreted, and Mr. Trump’s intention to follow, or not follow, the law related?

  9. If they want to get Trump’s attention, Congress (or just the House) should simply refuse to fund any travel by White House staff, including specifically the Secret Service. 0 jet fuel for Air Force One. No hundreds of staffers being put into hotel rooms at taxpayer expense. (Coincidentally, all of them staying in properties Mr. Trump takes profits from).

    Make Trump stay in Washington, with no more jaunts to golf courses, or rallies, or anything but D.C. He clearly hates being in D.C., and it’s not like he’s going to spend any of HIS money to do anything.

    1. They ought to try. Such pettiness always is effective.

  10. 3) that the injury can be redressed by a judicial ruling.

    In Trump’s case, isn’t that predicate very much in question?

    Even if the case were won in the Supreme Court, what if Trump just goes ahead anyway? Potential answers to some questions make them too dangerous to ask.

    Trump’s reign of recklessness is a political problem, not a judicial problem. Political problems require political solutions. Given the Senate majority’s abiding unwillingness to participate, any political solution to Trump’s defiance will require the House to strain to the utmost its own political power—which will require willingness to create and manage a crisis that transforms the politics of impeachment, and makes it realistic.

    Henceforth, Trump should have appropriations for nothing that conveniences his executive power. He should be struggling under explicit threat of impeachment, with ongoing investigations demanding accountability from his staff. His deputies and enablers in the administration should be so beset with subpoenas and contempt citations that they fear going to work, and fear supporting Trump more than they fear being fired.

    Accomplishing that would create the right kind of crisis. It would be the kind based on a clash of countervailing political powers—the kind the constitution and the federalist papers assured the American people they could use to check executive power gone out of control.

    Alas, there is political failure in the House. It is a failure different in its particulars, but not in its consequences, from that in the Senate. The leadership of the House quails. Whether through timidity, misguided political calculation, or because of a desire to block events which would empower leadership rivals within her own party—Pelosi has turned herself into a Trump appeaser.

    That means the necessary first step toward resolving the Trump crisis is not going to court, but revolt in the House, against its present leadership. Going to court invites protracting the crisis indefinitely. Even if obeyed, no single judgment will deter Trump of his method to transgress and be judged, again and again, and govern that way. But if court judgments go against Trump, and he chooses defiance, continued appeasement risks taking a step over the edge into actual tyranny.

    While Trump enjoys the full power of the executive office, his actual and implicit threats of defiance and retaliation remain too imposing. Thus, the first step must be to use countervailing political power to clarify for voters the particulars of Trump’s abuses, strip Trump of his uncritical political support, and weaken him sufficiently in the Senate to make removal from office realistic.

    Only action by the House can accomplish that. It is not certain that it will, but the effort must be made. Revolt in the House cannot start too soon.

    1. Even if the case were won in the Supreme Court, what if Trump just goes ahead anyway?

      What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

      If we were still in the previous administration you may have a point.

      1. What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

        If we were still in the previous administration you may have a point.

        Exactly correct. Our HEROIC & NOBLE PRESIDENT DONALD J. TRUMP is the most law-abiding President ever. He has obeyed clearly lawless 44*-judge rulings, even though they are meritless and motivated solely by a tantrum refusal to abide by the result of the election.

      2. What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

        It’s not all actions by the president. One point of my comment was that weakness from Democrats encourages misbehavior by Trump. And conversely, but perhaps even more relevant, I suggest a large plurality of Trump’s base would be happy with anything—including Court defiance—if it frustrated Democrats.

        Trump governs with no thought except pleasing the base, and using that base support as a firewall against an impeachment trial in the Senate. A president who thinks he is not impeachable is not a president who needs to knuckle under to a court.

        That does not mean there are not bad signs from Trump himself. There are too many to recite. You can probably name them as well as I can. But here are four you might leave off, that stand out as threatening:

        1. Trump’s constant efforts to de-legitimize the press.

        2. Trump’s “tough guys” remarks, where he threatened political opponents that he could direct mob violence against them.

        3. Trump’s many instances of expressed contempt for the judiciary.

        4. Trump’s defiance of checks and balances in his dealings with the House. Only the House has relevant power to enforce a court ruling against Trump.

        Perhaps you don’t think as I do that Trumpism shows historical earmarks of an incipient tyranny. I suggest anyway that there is enough there that even a Trump apologist should not be taken seriously if his principle response to others’ alarm is mere whataboutery.

        1. I am not afraid of incipient tyranny on the part of Trump. Not because I don’t think he’d like being a tyrant… he clearly longs for it… but because he’s so clearly incapable of doing anything. He needs to have other people around who can actually DO things, so that things get done and Trump can take credit for the things getting done.
          A real tyrant can get things done themselves, which leaves them free to liquidate anyone else nearby who might ALSO be able to get things done, because they might be a threat.
          From my point of view, Trump is an anti-tyrant… not that that’s a compliment. But for sheer ineffectiveness, it’s hard to beat Trump’s record. He managed to lose money operating a casino, whose very business model is that people come, hand over their money for nothing in return, and then leave.

  11. From a legal point of view, I could see how a court could reject a congressional lawsuit because Congress has the authority to override the President’s veto.

    I could see the court saying, “Hey, do this yourself.”

    Just because Congress can’t override the veto because there’s not enough votes shouldn’t make it ripe for a lawsuit.

  12. Congress regularly does, and the courts approve, cast off their legislative powers to the executive branch under the sophistry it’s executing a (meta) law.

    So why not cast off their power to declare war? Who cares? Why should this generation be bound to what dead generations said?

  13. This is a bad case for the war powers act.

    The primary issue here is, the US armed forces are not involved in hostilities. They are not bombing anyone. They have no armed forces in Yemen. It’s intelligence support and logistical back end support, at most.

    If this is a “violation” of the war powers act, what else is? Current US support for Ukraine? US support for Afghanistan in the 1980s? US support for the UK and France in 1915? US support for Nationalist China in 1939?

    Leave the War Powers Act for actual cases involving US forces in combat. If Congress wants to stop any US support for Saudi Arabia, they can do so via the normal channels.

  14. Every war is always called “illegal”, as if nation states obeyed laws. Does anyone still think calling a war “illegal” is persuasive in any way? Why continue with this particular pretense?

    1. When we’re talking about our involvement in a war, our involvement may have followed lawful practices, or it might not have. If it didn’t, pointing out that it didn’t doesn’t magically get us out of it, but it does illustrate the leadership choices of whoever got us into the war.

      When you talk about war in general, the conduct of the war by methods proscribed by treaty affects actions after the war is over.

      Finally, sometimes it affects moral judgment. Japan dragged the U.S. into the shooting war in 1941. They also got on the receiving end of 100% of all the atomic weapons ever used in war. They wanted us in the war, and they got us into the war. Turns out, they would have rather not had us in the war.

  15. If you want to sue over this, why not find a plaintiff who has standing?

    And even if one did, the political question doctrine might apply. After all, it’s not like Congress thinks the President has done anything seriously wrong. After all, if they did, they would do something they have the power to do, like impeach the guy, rather than doing useless gestures like making speeches, filing lawsuits, and other behavior that pretends someone else is responsible.

    1. Impeachment without conviction is rather meaningless.

      In much the same way prosecutors don’t indict until they’re sure they have enough evidence to convict, but that doesn’t mean they don’t know whodunnit and why.

  16. After Chatha, Congress went through every statute with a legislative veto and turned it into a requirement for a full Act of Congress. This was giving away the store. The President was given unilateral power to act unless a veto-proof majority override. Congress needs to place limits on Presidential authority unless Congress affirmatively ratifies.

  17. Actions such as this are why I give the libertarians with a capital L a break once in a while.

  18. War Powers is blatantly unconstitutional. The President is Commander-in-Chief of the armed forces and he gets to order them to go somewhere and blow things up. A declaration of war has *never* been necessary for that to happen. Did Congress declare war on the seceding southern States? No. It wasn’t necessary.

    If Congress disagrees with his use of the military, Congress’s option is to exercise its funding power to deny funding for any military adventures it doesn’t want to continue. Getting the courts involved in this is both unncessary, and to the extent that it seeks to curtail the President’s lawful authority to wage war, as opposed to declare it, ether useless or unconstitutional depending on the outcome.

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