Biden Had the Power to Strike the Houthis
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Some of President Joe Biden’s critics argue that he did not have the authority to launch yesterday’s strikes in Yemen, but America’s presidents have significant constitutional powers regarding the use of military force.
First, here are four new stories from The Atlantic:
- January 6 is exactly what the Fourteenth Amendment was talking about.
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Presidents and the Use of Force
In America’s deeply divided political environment, today’s bipartisan support for President Biden’s strikes on Iranian-backed Houthi militias in Yemen is a rare but encouraging moment. Democrats and Republicans alike recognized that Biden did the right thing. Indeed, some Republican leaders may have a point that Biden waited longer than necessary to react to the ongoing Houthi attacks in the region, which have already created so much hazard for maritime commerce that container-ship activity in the Suez Canal is down by 90 percent.
The operation, short and limited to military targets, and in a nation that cannot control the piratical acts of an unwelcome group, falls well within the legal as well as the traditional requirements for the use of force by members of the international community. So far, both American political parties, even with a bit of GOP grumbling, have made the right call to support action against the Houthis. Biden’s actions, however, have also generated opposition from a much smaller bipartisan group of progressive Democrats and hard-right isolationist Republicans, who are making the case that Biden did not have the authority to launch military action.
Some of these accusations are merely glitter and sequins pasted onto bad-faith partisan arguments. Republican Senator Mike Lee of Utah, for one, has joined with a handful of Democratic progressives who argue that Biden is violating the Constitution. (Lee seems to imagine himself as the constitutional conscience of the Senate, which has not deterred him from supporting Donald Trump or spewing conspiracy theories about the January 6 insurrection.)
The constitutional objections from progressives, including Representatives Ro Khanna of California and Pramila Jayapal of Washington, don’t make much sense, even if they are offered in good faith. (Representative Rashida Tlaib of Michigan has also voiced her opposition to the strikes, but her added flourish that “the American people are tired of endless war” suggests something less like good faith and more like signaling her bona fides to the far left.)
Such objections have been lodged before about various U.S. operations around the world, ordered by presidents of both parties. They are rooted in the inherent tension in the Constitution between Article I, Section 8, which reserves to Congress the power to declare war, and Article II, Section 2, which designates the president as the commander in chief of the armed forces. Congress decides when a state of war exists between the United States and a foreign adversary; the president otherwise directs the actions of the U.S. military.
But does the president need to ask Congress every time he directs the armed forces of the United States to engage in violence? Jayapal seems to think so: Article I, she posted on X yesterday, “requires that military action be authorized by Congress.” Khanna was more specific, saying that this particular action needed to be approved—but that’s a small distinction without much of a difference.
Article I says none of these things, and in any case, America has not actually declared war on anyone since the spring of 1942. (This is a great bar bet, by the way: Most people will guess that the last U.S. declaration of war took place in 1941, after the Japanese attacked Pearl Harbor, but declarations against the minor Axis members Bulgaria, Hungary, and Romania took place six months later.)
Even Korea and Vietnam were not declared wars; rather, American presidents ordered troops into combat while relying on the self-defense provisions of the United Nations charter, as well as enforcing our legal obligations under treaties of alliance. Likewise, presidents have argued that acting in self-defense or to prevent further harm to ourselves or our friends does not require congressional approval.
Vietnam and Korea, however, were clearly wars—despite the reluctance of successive administrations to say so even while engaging in conscription. In 1973, Congress, infuriated by President Richard Nixon’s widening of the war to Cambodia, passed the War Powers Resolution. Unfortunately, the act was a sloppy piece of legislation that allows Congress to direct the withdrawal of U.S. forces from action 60 days after the deployment of U.S. forces, unless Congress declares war, extends the 60-day period, or is unable to meet due to enemy action, such as a nuclear attack. Nixon vetoed it (rightly, in my view) as an unconstitutional trespass by Congress on the executive branch’s authority.
Congress overrode his veto, but for a half century, no one has really had the gumption to invoke the resolution as a limit on U.S. military action. Presidents have submitted reports to Congress on their military actions more than 130 times over the past decades; Congress, for its part, has remained reluctant to claim the authority to direct military conflicts. Instead, American leaders have resorted to makeshift fixes such as “authorization for use of military force,” pieces of legislation that allow presidents to conduct undeclared wars while Congress leaves open for itself the later possibilities of either grabbing some of the laurels of victory or avoiding the shared stench of failure.
The War Powers Resolution is also inherently dangerous: During a conflict, it sets a public timer in motion that American enemies might use against the United States. During the first Gulf War, for example, I advised a senior Republican senator, John Heinz of Pennsylvania. He was thinking of joining with other GOP senators to invoke the resolution as a means of helping President George H. W. Bush by granting him the authority he needed to fight Saddam Hussein’s invasion of Kuwait. I made the same arguments as other opponents of the resolution, noting that the time limit could encourage Saddam to wait out the Americans long enough to provoke a fight between Congress and the White House. Heinz agreed.
I have long been a critic of how Congress has abdicated its responsibilities in national security and national defense to the executive branch. But Biden’s actions in Yemen were, even by more restrictive standards, well within the bounds of U.S. and international law, as well as the centuries-old norms governing armed conflict. If members of Congress want to place limits on presidential uses of force, they should repeal the flawed War Powers Resolution and replace it with something else. (I am especially anxious that they do this with regard to the employment of nuclear weapons.)
Such solutions might well end up before the Supreme Court, where well-intentioned people can make solid arguments that the modern presidency needs better limits on the powers of the commander in chief. The world is full of conflicts that could be difficult test cases for such arguments, but what happened in Yemen over the past 24 hours is not one of them.
Related:
- The Houthis have backed Iran into a corner.
- The leaders who aspire only to hold on to power (from 2022)
Today’s News
- The Justice Department is seeking the death penalty for Payton Gendron, who killed 10 people in a racially motivated shooting targeting Black people at a supermarket in Buffalo, New York, in 2022.
- The Supreme Court will review an appeals-court ruling dealing with municipal ordinances that ban homeless people from camping on public property. The court will decide if these local laws constitute “cruel and unusual punishment.”
- The Texas National Guard and state troopers are blocking U.S. Border Patrol agents from patrolling a 2.5-mile stretch on the Texas-Mexico border, intensifying the conflict between state and federal authorities in the area.
Dispatches
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Evening Read
“Plant-Based” Has Lost All Meaning
By Yasmin Tayag
Beyond the meat aisle, the “plant-based” label lives on in virtually every food product imaginable: instant ramen, boxed mac and cheese, Kraft singles, KitKat bars, even queso. You can now buy plant-based peanut butter. You can also wash your hair with plant-based shampoo and puff on a plant-based vape.
Queso made from cauliflower instead of milk is correctly described as plant-based. But if peanut butter is vegan to begin with, then what is the point of the label? And who asked for plant-based liquor? On packaging and ad copy, plant-based has been applied to so many items—including foods that are highly processed, or those that have never contained animal ingredients—that it has gotten “diluted to nothing,” Mark Lang, a marketing professor at the University of Tampa who studies food, told me.
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Culture Break
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Stephanie Bai contributed to this newsletter.
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