The War On Yemen, Congress, And The Constitution

The Wall Street Journal tries, and fails, to defend President Trump's indefensible veto of the Congressional resolution regarding the war on Yemen.

The Editors of The Wall Street Journal have posted a particularly galling, and historically and legally inaccurate, defense of President Trump’s decision to veto a Congressional resolution barring American support for the Saudi Arabian war on Yemen:

President Trump isn’t known for eloquent defenses of his foreign policy, but on Tuesday he stood up for a crucial American principle. His veto of a congressional demand that the U.S. withdraw support from the Saudis in their war in Yemen keeps responsibility for foreign policy in the White House, where it belongs.

Lest anyone forget_and Congress seems to_the Saudis are leading a coalition against Iran-backed Houthi rebels in Yemen. Tehran aspires to use its proxies to build an arc of influence across the Middle East. Yemen is an inviting target since it controls the passage from the Red Sea into the Arabian Sea, and offers a convenient base from which to launch rockets into Saudi Arabia.

(…)

This is true despite the murder of U.S.-resident journalist Jamal Khashoggi last year, perhaps with the knowledge of Saudi Prince Mohammad bin Salman, the country’s de facto leader. That event and Mr. Trump’s evident lack of concern beyond raw national interest inspired a rebellion even among some Senate Republicans, who joined Democrats in invoking the discredited War Powers Act to force the U.S. to stop offering Riyadh intelligence and other support.

This is a case study in why that 1973 law, passed over the veto of a weakened Richard Nixon and resisted by every Administration since, is a bad idea. Congress has repeatedly supported Administration efforts to deter Iran, yet it now also wants to grandstand over the Khashoggi murder in the middle of a violent proxy battle with Tehran. The Founders vested broad foreign-policy responsibility in the executive to avoid precisely such waffling and confusion while still holding the President accountable to voters.

As Daniel Larison notes, this view of foreign policy under the Constitution goes against what the Founding Fathers understood and, indeed, the language of the Constitution itself:

The WSJ‘s framing of the issue is misleading as always. The question is not whether the president should be responsible for conducting foreign policy, but whether the executive is allowed to involve the U.S. in a foreign war without Congressional approval. The Constitution clearly assigns responsibility for that decision to Congress. The president is not allowed to involve the U.S. in foreign wars on his own. Congress has reasserted its role in matters of war and decisively answered that the executive is not allowed to do that and must stop at once. Even the otherwise reliably pro-war David French has acknowledged that there is no question that U.S. involvement in the war on Yemen is unconstitutional

(…)

The foreign war in question also happens to be morally indefensible and a failure on its own terms, but the fact is that it would still be illegal for the U.S. to be involved in the war if those things weren’t true. The U.S. has been enabling war crimes and crimes against humanity in support of a war of aggression against a country that has done nothing to us and poses no threat to us. These are all very good reasons why support for the war on Yemen should be terminated regardless of its legality, but that support is also in violation of the Constitution. It takes extraordinary gall for the WSJ editors to invoke the wisdom of the Founders in their blatant attempt to subvert the clear meaning of the Constitution, but that is to be expected. The president does not have the authority to start or join wars at will, and in the absence of Congressional authorization he is acting illegally when he involves the U.S. in a foreign war. U.S. involvement in the war on Yemen is illegal and unconstitutional, and one way or another Congress and the public will bring it to an end.

The War Powers Act, of course, was passed in the wake of the Vietnam War in an effort to reign in Presidential war power. In reality, the law has had the impact of enhancing that power greatly and giving the President the ability to commit U.S. military forces without seeking Congressional approval under a wide variety of circumstances. As summarized by Wikipedia, the Act “requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without authorization of the use of military force or a declaration of war.” The advantages to the President here seem obvious. As long as he notifies Congress, the President has the legal authority to engage in virtually any military action he desires. If that action is still ongoing 90 days later, then Congress is left with the option of cutting off funding to troops in the field after they’ve already been committed — and if a President refused to withdraw troops does anyone really believe that any Court anywhere would require him to do it? Presidents since Richard Nixon have argued that the WPA is unconstitutional because it unduly restricts the President’s powers as Commander In Chief, In reality, it seems that there is a strong argument that the act is unconstitutional because it delegates too much of Congressional war power to the Executive Branch.

It’s easy to see why Presidents would like the present state of affairs. After all, foreign policy, and especially the use of military force, is the one area where they have the most authority to begin with, and accumulating more power in that area allows them to act unilaterally and be, well, “Presidential,” if by Presidential you mean someone who orders the military to go in and blow things up without waiting around for Congress.

As Matthew Yglesias has noted in the past, however, Congress has simply stood by and let Presidents take this power because they don’t want to exercise it:

The one observation I would make about this, is that while the trend toward undeclared military incursions is often described as a kind of presidential “power grab” it’s much more accurately described as a congressional abdication of responsibility. Even if you completely leave the declaration of war business aside, congress’ control over the purse strings still gives a determined congressional majority ample latitude to restrain presidential foreign policy. The main reason congress tends, in practice, not to use this authority is that congress rarely wants to. Congressional Democrats didn’t block the “surge” in Iraq, congressional Republicans didn’t block the air war in Kosovo, etc. And for congress, it’s quite convenient to be able to duck these issues. Handling Libya this way means that those members of congress who want to go on cable and complain about the president’s conduct are free to do so, but those who don’t want to talk about Libya can say nothing or stay vague. Nobody’s forced to take a vote that may look bad in retrospect, and nobody in congress needs to take responsibility for the success or failure of the mission. If things work out well in Libya, John McCain will say he presciently urged the White House to act. If things work out poorly in Libya, McCain will say he consistently criticized the White House’s fecklessness. Nobody needs to face a binary “I endorse what Obama’s doing / I oppose what Obama’s doing” choice.

The other important point, of course, is that what the Constitution says about war powers at this point is largely irrelevant, what matters is nearly 200 years of tradition and history, during which Presidential authority to engage in military action without getting direct Congressional approval has gradually, but incessantly, expanded. It started in 1801 when Thomas Jefferson essentially declared war on the Barbary States (located, ironically enough, in what we now call Libya) for their piracy against American military and merchant’s vessels. In that instance, Jefferson did inform Congress of his actions, and they did issue what some might call an authorization for the use of force against the pirates. Later, in the 20th Century, Presidents sent forces of various sizes of Latin American nations such as Nicaragua to put down rebellions or maintain control. Then, once the Cold War started, the instances of unilateral action by the President increased exponentially, starting with the Korean War, a three-year-long engagement that was never directly authorized by the United States Congress. And, of course, it’s worth noting that the bloodiest conflict in American history was an undeclared war.

This doesn’t mean that Congress is without power under the Constitution to regulate and oversee the foreign policy decisions that a President makes. The truth is quite the opposite. In addition to possessing the sole authority to declare war, Congress also possesses the ability and authority to oversee the actions of the Executive Branch, including the Department of Defense and the uniformed military services. This means that Members of the appropriate committees in the House and Senate are fully within their authority to require members of the military leadership and the Executive Branch to appear before Congress and explain what they are doing and why they are doing it. If necessary, of course, matters that are classified can be discussed behind closed doors but in general, these are matters that ought to be publicly aired. Additionally, Congress also possesses the power of the purse and has the authority to deny funding to a military or foreign policy venture that it strongly disagrees with. The fact that it has not used these powers adequately in the past is no excuse for not doing so in the future.

This is why the Congressional vote on Yemen was so encouraging to those of us who have stood by and watched President after President assume more and more authority in the name of “national security” while Congress either rubber-stamped their action, as in the case of the Iraq War, or stood by and did nothing as in the case of President Obama’s unauthorized and mistaken decision to involve the United States in the Libyan civil war. For once, Congress, including many Republicans were standing up against a President who was backing a supposed ally in a war that has led to the deaths of innocents and the spread of disease and famine, and which threatens to turn Yemen into yet another breeding ground for terrorism. Hopefully, it is a sign that future Congresses will be paying more attention to the foreign policy choices that Presidents make and using their authority under the Constitution to both oversee those operations and, where necessary, curtail them or at least force Presidents to justify their actions with more than just vague references to “national security.”

FILED UNDER: Congress, Donald Trump, Law and the Courts, National Security, Politicians, U.S. Constitution, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Sleeping Dog says:

    Congress passed the War Powers Act in a paroxysm of insanity responsibility and have regretted it ever since.

  2. Gustopher says:

    Between this veto and the national emergency wall veto, it is becoming clear that the presidency is now a dictatorship constrained by two four year terms up until two thirds of the Senate disagrees (the House can impeach with a simple majority)

    I would also point to the many cabinet offices that now have titles starting with “acting” as another way to avoid congressional checks on the executive.

    I don’t think that’s what the founding fathers intended.

    I always thought the Republican calls for a smaller government were calls for less government influence. I guess they just meant put as much power into one person’s hands as possible. Technically that is a smaller government, just smaller along a different measurement.

    (I think a government of little people would be a better interpretation — no one over five feet tall or 150lbs. It would be absurd, but checks and balances would still function)

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  3. gVOR08 says:

    In another thread I talked about the idea that the prez can’t be indicted because the government can’t function without him, and that to the extent that’s true, it’s a problem we should fix. This is exactly the sort of thing I had in mind. The “Imperial Presidency” is antithetical to democracy.

  4. An Interested Party says:

    The Wall Street Journal tries, and fails, to defend President Trump’s…

    This line is true for most of the disreputable actions, speeches, tweets, etc. of this trash in the White House…of course, the same line could be used for just about every business owned by Rupert Murdoch…

  5. de stijl says:

    @Sleeping Dog:

    Congress passed the War Powers Act in a paroxysm of insanity responsibility and have regretted it ever since.

    Compare and contrast to the AUMF. Why is this still active? Repeal it!

  6. de stijl says:

    @de stijl

    the AUMF

    The blankest blank check that’s never been properly signed. Undoubtedly the worst legislation of this century – what were they thinking?

    And it brought a metric-ton of shit.

    We panicked and passed a law then. We’re way past the panicked stage – why is the same law still in place? So effing stupid.

  7. Sleeping Dog says:

    @de stijl:

    AUMF is another example of Congresses dereliction of duty. Even when requested by Obama, to renew and expand the mission, Congress refused to act. Just stuck their heads in the sand. God forbid they actually take a stand, as opposed to grandstanding, on something.

  8. OzarkHillbilly says:

    @gVOR08:

    the prez can’t be indicted because the government can’t function without him,

    Our present circumstances say it is otherwise. In fact, some parts of our govt appear to be functioning despite him.

  9. OzarkHillbilly says:

    @Sleeping Dog: Congress is the last refuge of cowardly scoundrels.

  10. Andy says:

    Is Congress willing to put our money where its mouth is?

    A resolution is one thing, actually using Congress’ real power – the purse – is quite another. My guess is they don’t have the spine to defund our involvement in Yemen in the next defense appropriation.

  11. Just nutha ignint cracker says:

    Reading the WSJ snip, it’s almost like the paper has become The Nation for RWNJs and the oligarchs who own the government. WA!

    The War Powers Act was passed because repealing the Gulf of Tonkin Resolution would not only have failed to solve the problems involved with the resolution but also have shown how foolish and easily manipulated Congress had become even as early as 1964. It was a head fake.

  12. Kathy says:

    The right wing rightly criticized radical Islamists who took as a model a document meant for 7th Century Bedouins. But, if I may borrow from their even older document meant for desert peasants and the urban poor, their obsessions with the beams in other peoples’ eyes doesn’t let them see the beam in their own eye:

    Idealizing a XIX century document meant to safeguard the rights and privileges of rich land-owners isn’t exactly conducive to progress, either.

    The US Constitution is a good start, in as it details limits to government and asserts many individual rights. But it’s a start. It didn’t spring up ex nihilo, complete and perfect directly from the heads of the Framers.

    Yes it can be amended, but it also suffers from original flaws one can’t get around. More than being amended, it requires to be updated. Besides, in these days of deep division, it seems far easier, and more plausible, to move NYC, people, buildings, rivers and all, to the far side of the Moon, than to pass any kind of Constitutional amendment.

  13. Kathy says:

    There’s a saying in Latin, Inter arma enim silent leges, meaning that “For among times of arms, the law falls mute.” Or the more popular translation: In time of war, the law falls silent.

    America has been at war, effectively, since December 7th 1941 non-stop until today, and the war continues.

    Right after WWII, the war that involved the US in late 1941, began the Cold War. Though that ended in the 90s, it actually continued by other means, as the vanquished adversary retained its forces almost intact. Lest we forget, there is also a war on drugs. And then in 2001 began a more militarily active “war on terror,” which has expanded and contracted.

    All this time, mind, there have been land-based and sea-based nuclear missiles ready to be launched at a moment’s notice, not to mention nuclear-capable bombers on perpetual alert, and constant vigilance against attack at NORAD. This is in the nature of an active war footing, not peace.

    It’s not that the law doesn’t operate in time of war, but that it tends to defer, too much, to the executive branch running the war. This means Congress tends to approve war-related expenditures and pass war-related laws. The courts, while less beholden, also tend to side with the executive branch.

    The executive branch, meantime, accrues more power, for reasons of “national security.”

    Growing up with a large, active military, would seem to be normal. But it’s far from normal. For much of human history, standing armies have been rare and rather small. The large standing army, along with mandatory conscription, is a legacy of the French Revolution. By historical standards, this is a recent development, not even 250 years old.