by Daniel DePetris
President Joe Biden’s decision to order a wave of strikes against Houthi targets in Yemen was inevitable the moment the Yemeni militia disregarded Washington’s warnings a week earlier and sent a swarm of 18 drones and three anti-ship ballistic missiles in the direction of U.S. warships.
Last week’s strikes, which took place with the cooperation of the United Kingdom and were aimed at 60 locations, were designed to degrade the Houthis’ capabilities and hopefully deter additional attacks on shipping lanes in the Red Sea.
As one would expect, the U.S. military is highly proficient at these types of standoff operations. Tactically speaking, the mission was a success. The Houthis woke up the next morning with less military hardware than they had the previous night. As one anonymous U.S. defense official said shortly after the joint U.S.-U.K. strikes were over: “We hit them pretty hard, pretty good.”
Beyond the tactical and strategic questions surrounding the operation, however, are the legal and constitutional ones that were largely brushed aside. The key question: Does the president have the right to order military action without a vote from Congress?
In an ideal world, the country’s elites and institutions would actually abide by the Constitution as it’s currently written. With respect to a wartime action, the Constitution is quite clear: The legislative branch has the sole responsibility to decide whether the nation enters hostilities. This can be taken through a formal declaration of war or, as is more commonly practiced since World War II, by voting through an authorization giving the president the authority to initiate military action.
That’s how the system is supposed to work, and it’s indicative of the checks-and-balances principle that our nation’s Founders astutely established when they were debating how the American republic should be organized and governed.
Unfortunately, in the real world, checks and balances are watered down as to be almost irrelevant, at least when matters of war and peace are concerned. Outside a few ardent constitutionalists on Capitol Hill such as Rep. Ro Khanna and Sen. Rand Paul, the vast majority of lawmakers either don’t seem to care about Congress being sidelined or are perfectly happy with an all-powerful executive taking exclusive control of the reins.
One needs only to take a fast glance at the statements from congressional leadership after last week’s strikes to appreciate just how nonchalant Congress has gotten on what is the most consequential issue elected lawmakers will make in their careers. Whether it’s House Speaker Mike Johnson or Senate Armed Services Committee Chairman Jack Reed, the rhetoric is largely supportive of the U.S. operation against the Houthis.
In terms of constitutional questions, it’s depressing that so many lawmakers are untroubled with the idea of a single individual making the decision to bomb another country for the rest of us. Yes, Biden is the president and also the commander in chief. But there’s a big difference between being a president and being a king. The former holds a lot of power but is forced to share some of it with others in the system; the latter holds all the power and is unaccountable to no one. Sometimes, it’s hard to differentiate between the two.
To be fair, Biden is not the only U.S. president to order military action without Congress’ buy-in. You would be hard-pressed to find any U.S. president over the last several decades who hasn’t done this. Ronald Reagan invaded Grenada (1983) and bombed Libya (1986) without congressional approval. While George H.W. Bush sought and received congressional approval for Operation Desert Storm in Iraq, he also invaded Panama (1989) and sent U.S. forces into Somalia (1992) on his own.
Bill Clinton bombed Iraq three times (1993, 1996 and 1998), authorized airstrikes in Bosnia (1995) and spearheaded a NATO bombing campaign against Serbia in Kosovo (1999). George W. Bush expanded the so-called war on terrorism to Yemen (2002) and Somalia (2003). Barack Obama organized a U.S.-led multilateral bombing campaign in Libya in 2011 on the legally ridiculous notion that airstrikes without ground troops didn’t constitute “war” in the constitutional sense. Donald Trump sent Tomahawk cruise missiles into Syrian government airports and military facilities not once, but twice (2017, 2018), in retaliation for dictator Bashar Assad’s chemical weapons attacks against his own people. Biden’s strikes on Houthi targets are only the latest in a long series of presidential war-making.
In short, keeping Congress sidelined has become such common practice that it can now sadly be referred to as the normal way of doing business. This isn’t how the system is supposed to work, and it certainly isn’t the way the Constitution should be interpreted. Frankly, the architects of that document likely would be yelling expletives if they were still alive and knew how their work product was being used — and just as importantly, not used.
Can the situation change for the better? Yes, it can. But it will require bold action on the part of Congress as an institution and a willingness from lawmakers to actually do their jobs. You can’t fix this asymmetry of constitutional power by relying on the executive to help out. The antidote is showing some backbone and political courage to take difficult but necessary votes.
Continuing to hide under the desk whenever the subject of war comes up will, over time, gut the legislative branch and turn what should be a republic into a de facto kingdom.
