« The Situation at the Southern U.S. Border — Part II
Andrew Hyman
| Main | Robert Natelson’s Paradoxical Article on Illegal Immigration
David Weisberg »


The Houthis and War Powers
Michael Ramsey

Politico reports: Dems rip Biden for launching Houthi strikes without congressional approval.  From the introduction:

A group of progressive Democratic lawmakers on Thursday responded furiously to President Joe Biden’s move to launch retaliatory strikes against the Iranian-backed Houthis in Yemen without first seeking congressional approval.


Lawmakers argued that the move violated Article 1 of the Constitution, which requires military action to be authorized by Congress. Biden notified Congress but did not request its approval.


“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,” said California Rep. Ro Khanna (D-Calif.) on X, formerly known as Twitter. ...

Sen. Mike Lee (R-Utah) responded to Khanna’s post in agreement, writing that ”the Constitution matters, regardless of party affiliation.”

At Volokh Conspiracy, Ilya Somin responds: Does Biden Need Congressional Authorization for His Strikes Against the Houthis?  From the introduction:

[Thursday], the US and UK launched air and missile strikes on Houthi forces in Yemen, in response to the latter's repeated attacks on shipping in the Red Sea. This action raises a variety of moral and policy issues. It also raises the question of whether President Biden has the authority to launch these strikes without congressional authorization (which, so far, he hasn't gotten). Several members of Congress—mainly on the far right and far left—have already claimed Biden acted unconstitutionally.

It is true that the Constitution gives Congress, not the president, the power to declare war. The president cannot initiate any large-scale military action on his own. But critics of Biden's action overlook the fact that the US strikes are not initiating a war, but responding to attack. For weeks, the Houthis have been launching indiscriminate attacks on shipping in the Red Sea, one of the world's most important waterways.

He continues (citing my article The President's Power to Respond to Attacks):

[T]he president does not need advance congressional authorization to respond to attacks on US troops, territory, or American ships on the high seas. In such cases, it is not the US that has initiated the conflict, but the enemy.  ... [D]efensive responses may include tactically offensive actions, such as—in this case—targeting the bases and other facilities the Houthis used to launch their attacks on shipping.

I agree.  But there are some caveats, several of which Professor Somin explores:

(1) I'm not entirely sure that the Declare War clause is even applicable here.  The Houthis aren't a sovereign entity.  Whether it is possible to have a war (in the constitutional sense) with a non-state actor remains something of a puzzle.  (I said probably yes, in Textualism and War Powers, but I continue to have doubts)  If it's not a war, the declare war clause doesn't apply, so the President could act just under his commander-in-chief power.  As Professor Somin notes, there could still be an issue under the War Powers Resolution if the hostilities persist.

(2) Professor Somin notes that it is somewhat unclear whether the Houthis have targeted U.S. shipping.  I agree with Professor Somin (but even more so) that this is a critical point.  The President's power to respond to attacks does not extend to responding to attacks on allies or neutrals.  According to the Politico story, "[t]he Biden administration justified the joint strikes ... as conducted “in accordance with the inherent right of individual and collective self-defense, consistent with the UN Charter.”  That's a correct statement of the Charter, but the Charter is different from the U.S. Constitution.  Under the Constitution, in my view, collective self-defense requires congressional approval.

(3) Professor Somin suggests that an attack on ships of a NATO ally might support trigger the President's power to respond:

Under Article 5 of the NATO treaty, the US has a legal obligation to help defend other members of the alliance if the latter are attacked. That provides further legal justification for Biden's strikes. By ratifying the North Atlantic Treaty, Congress has in effect preauthorized military action when necessary to carry out US obligations under Article 5.

I'm doubtful that this is how the NATO treaty is or should be understood.  I agree that the treaty imposes a legal obligation on the U.S. to respond, but I think this is an obligation on Congress to exercise its declare war power.  I don't think a treaty (in which the House does not participate) can reallocate Congress' power to the President.

With these caveats, though, I agree with the central point (and disagree with the objecting members of Congress) -- assuming the Houthis have targeted U.S. ships, the President has independent power to respond to those attacks with force.