America’s War in Yemen Is Plainly Unconstitutional

Yesterday, Donald Trump vetoed a bipartisan congressional resolution demanding an end to U.S. involvement in Yemen’s civil war. It’s now official: The president who ran for office pledging to reduce military entanglements abroad is involving American forces in a foreign war in direct defiance of the plain language of the Constitution.

First, some background. Beginning in 2015, the Obama administration recklessly inserted itself into Saudi Arabia’s proxy war with Iran, backing Saudi military action against Yemen’s Houthi rebels. America has long been an important source of arms for Saudi Arabia, but Obama’s support went well beyond merely providing planes and bombs. His administration also authorized other active, indispensable support, including aerial refueling and targeting assistance.

This direct involvement represented an act of war by any reasonable measure, and there is no meaningful argument that it was enabled by any existing congressional war authorization. The Authorization for the Use of Military Force enacted after the 9/11 attacks plainly doesn’t apply to Iran-backed Shiite rebels fighting in Yemen (though it does apply to al-Qaeda cells active in the country), nor does the subsequent Iraq War authorization.

Article I, Section 8, Clause 11 of the Constitution grants Congress the exclusive authority to declare war. Yes, Article II declares that the president is the commander-in-chief of the armed forces, but reading the two clauses together, their meaning is plain: The president commands American forces when Congress declares war. Yes, the president has inherent authority to order immediate military actions in times of crisis, but he should also promptly seek congressional approval for such actions.

No one should pretend that there aren’t constitutional gray areas in this structure, of course: How long can a president respond to an emergency before Congress must ratify or reject the conflict? Once Congress has authorized any given action, how far can a president extend or expand a conflict? Does the authorization of force against al-Qaeda extend to, say, al-Qaeda progeny such as ISIS? Does the authorization of war in Iraq extend to actions deemed militarily necessary to stabilize the country, like the use of force in Syria?
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