The YPP's legal team prepared this analysis of the War Powers Resolution last year, ahead of an effort in the US House of Representatives to invoke the Resolution and end America's military involvement in Yemen's civil war.
Historical Context
In 1964, Congress passed the Gulf of Tonkin Resolution authorizing the Executive Branch to introduce U.S. forces in South-East Asia without a declaration of war from Congress. President Johnson and Nixon subsequently escalated the initial “advise and assist” mission in South Vietnam into a full-scale war prosecuted by U.S. forces, and failed to notify Congress of a bombing campaign in Cambodia. In an attempt to avoid similar executive overreach, Congress passed the War Powers Resolution in 1973 (50 U.S.C. Chapter 33).
Legislative Provisions
The War Powers Resolution provides that the President must consult with Congress before introducing U.S. forces into hostilities or situations where hostilities would be “imminent.” The President is also required to report to Congress if he/she plans to augment the existing number of U.S. forces in a foreign country. In emergency situations where such prior consultation does not take place, the President must submit a report to Congress within 48 hours and include (1) the circumstances necessitating involvement of U.S. forces, (2) the constitutional and legislative authority under which such action took place, (3) and the estimated scope and duration of the hostilities or involvement.
Most Presidents have argued that the War Powers Resolution infringes upon their power as Commander in Chief under Article II Section 2 of the Constitution. However, those supporting the War Powers Resolution note that the Constitution grants Congress the exclusive authority to declare war and to raise and support the armed forces, pursuant to Article I, Section 8. This is an appropriate allocation of authority in a democracy. In allowing the President a limited and qualified authority to respond to emergencies, the War Powers Resolution preserves the Constitutional balance while protecting essential security interests. Although the Obama administration initially contended that it did not need Congressional approval to wage war in Syria in 2013, for example, the President eventually relented under pressure from a Congressional coalition stating that such action would violate the War Powers Resolution.
Applicability to the War in Yemen
The factual evidence that U.S. armed forces have been “introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” is inescapable. A few of the many available examples include the following:
- The U.S. government acknowledges that it is currently providing extensive support to the Saudi-led Coalition for its military operations in Yemen, in particular for the coalition’s deadly air war. The U.S. has contributed surveillance feeds from U.S. drones, mid-air refueling for airstrikes on Yemen, and military advisors and trainers. U.S. refueling of coalition jets has reportedly doubled since October 2016. It is reported that U.S. personnel are present in or adjacent to Coalition targeting centers and are training Saudi targeting and intelligence personnel on a continuing basis. However, despite multiple congressional requests, U.S. CENTCOM has not been able to provide reliable data on U.S. support for the coalition, especially in regard to the coalition missions refueled by the U.S. military. As recently as October 3, 2017, October 9, 2017, and October 12, 2017 the Pentagon, as well as Secretary of Defense Mattis, has provided conflicting public reports about the role of US personnel in the Saudi-led coalition’s joint command center.
- In October, 2016 an American warship stationed off the coast of Yemen fired cruise missiles at radar installations that the Pentagon said had been used by Yemeni insurgents to target another American warship in at least three missile attacks over a four day period. In fact, the Obama administration reported on the engagement in its December 5, 2016, Supplemental 6-month War Powers Letter which was “prepared by [his] Administration and consistent with the War Powers Resolution.”
- In the spring of 2017 there were reliable reports that the U.S. administration seriously considered assisting a Coalition operation to recapture the city of Hodeidah, currently held by Houthi forces.
- In his December 2017 Supplemental 6-month War Powers Letter, President Trump stated, “United States forces, in a non-combat role, have also continued to provide logistics and other support to regional forces combatting the Houthi insurgency in Yemen,” thereby acknowledging the War Powers Resolution’s applicability to U.S. support for the Saudi-led coalition.
Thus far there is no separate statutory authority for such action. Chairman of the Senate Foreign Relations Committee Bob Corker (R-TN) publicly confirmed that the 2001 Authorization of the Use of Military Force (Pub. L. 107-40) does not apply to the Houthi rebels in Yemen’s civil war, stating that "engaging in a war against a group outside of ISIS [the Islamic State] is a step beyond the current authorization.” Without such authority, a violation of the War Powers Resolution is apparent.
The pertinent sections of the Resolution are:
PURPOSE AND POLICY
SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
INTERPRETATION OF JOINT RESOLUTION
SEC. 8. (c) For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.