Has Biden violated the US Constitution by bombing Yemen?

Lawmakers say Biden should have sought permission from Congress before launching strikes on 16 Houthi sites.

The United States launched military attacks on sites operated by the Iranian-backed Houthis in Yemen on Thursday, targeting its military infrastructure.

The US Air Force said in a statement that it had “executed deliberate strikes on over 60 targets at 16 Iranian-backed Houthi militant locations, including command and control nodes, munitions depots, launching systems, production facilities, and air defense radar systems”.

US President Joe Biden said the joint strikes with the United Kingdom were meant to demonstrate that the US and its allies “will not tolerate” the Houthis’ attacks on shipping in the Red Sea. The US raids, supported by Canada, Australia, Bahrain and the Netherlands, marked the first major US military response to Houthi attacks on shipping bound for Israel or owned by companies with any affiliations with Israel.

The threat posed by Houthi attacks on global shipping has become serious enough to cause major companies such as Maersk to suspend shipping in the Red Sea.

Several Democrat and Republican lawmakers have strongly criticised the move, accusing Biden of violating Article 1 of the US Constitution.

So what does Article 1 of the constitution say and has it been broken?

What is Article 1 of the US Constitution?

Article 1 of the US Constitution requires that war be authorised by Congress. In the lead-up to this week’s strikes on Yemen, Biden notified Congress of the strikes but did not seek authorisation. The article has long been understood to be a mechanism for checking and regulating the president’s power to wage war.

The hotly debated Section 8 of Article 1 assigns Congress the authority to declare war, stating “The Congress shall have the power to … declare war.”

The precise section of the article that requires explicit congressional approval for military action is the third clause of Section 10, which states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

What have US lawmakers said?

Congresswoman Pramila Jayapal from the Democratic Party called the strikes an “unacceptable violation of the Constitution” in an X post on Friday.

Jayapal’s statement was echoed by Democrat Congresswoman Cori Bush, who wrote: “The people do not want more of our taxpayer dollars going to endless war and the killing of civilians. Stop the bombing and do better by us.”

Other progressive lawmakers including Rashida Tlaib, Mark Pocan and Ro Khanna also took to the social media platform to denounce the military action as being in violation of Article 1.

However, it was not just Democrats who objected to Biden’s recent strikes. Republican Mike Lee shared Ro Khanna’s X post in agreement. “The Constitution matters, regardless of party affiliation,” he wrote.

Republican Texas Congressman Chip Roy wrote: “I am potentially fine with striking Yemen to defend critical shipping channel & response to aggression” but questioned the lack of congressional approval, asking: “Under what authority was this carried out?”

Some Republicans, including Mitch McConnell, Joni Ernst, Roger Wicker, Rick Scott and Lindsey Graham voiced support for Biden’s decision, deeming the strikes overdue.

What do those in favour of the attacks say?

A joint statement released by the governments of Australia, Bahrain, Canada, Denmark, Germany, the Netherlands, New Zealand, the Republic of Korea, the UK and the US justified the strikes, saying they were conducted “in accordance with the inherent right of individual and collective self-defence, consistent with the UN Charter”.

The Biden administration and its allies are likely to make another argument justifying the attacks by citing a section of the War Powers Act.

What is the War Powers Act?

The War Powers Resolution, more commonly known as the War Powers Act, was passed by the US Congress in November 1973.

The Act requires the president to inform Congress within 48 hours of military action and requires the termination of military action within 60 days of its commencement if Congress has not officially declared war or authorised the military action.

In September 2023, the New York Times carried out a survey of presidential candidates. On this issue, Biden responded that if he was elected in 2024, he would seek congressional authorisation to start a major war but added he believed he has the power to “direct limited US military operations abroad without prior Congressional approval when those operations serve important US interests”.

This stands in contrast to Biden’s stance in 2007, when, during a Q&A with the Boston Globe, he said: “The Constitution is clear: except in response to an attack or the imminent threat of attack, only Congress may authorise war and the use of force.”

Have US presidents always sought congressional approval for military strikes?

No. There have been several instances when US presidents have carried out military strikes without seeking congressional approval.

In December, the US military launched strikes against three sites used by Kataib Hezbollah, a major Iran-aligned armed group, and other unnamed affiliated groups in Iraq. Biden did not seek congressional approval beforehand.

The US president also ordered air strikes in Syria in February 2021 without the approval of Congress, a move that also drew criticism from lawmakers.

In January 2020, Democrats questioned whether it was legal for former president Donald Trump to order the assassination of the Iranian military commander, Qassem Soleimani, without congressional authorisation.

In March 2011, former president Barack Obama ordered air strikes in Libya without formal authorisation from Congress. Obama argued that the fighting in Libya did not amount to “hostilities” that would trigger the need for congressional approval.

Former president Bill Clinton escalated the 1999 NATO bombing against Serbia in Kosovo without formal authorisation from Congress.

Source: Al Jazeera and news agencies