On January 9, one of Donald Trump’s attorneys earnestly explained to a panel of federal appeals court judges that Presidents should be able to violate criminal laws with impunity—even by ordering the murder of their political rivals—as long as they are able to avoid impeachment and removal from office. This breathtaking claim, if accepted, would eviscerate the rule of law and upend the Constitutional order that James Madison and Alexander Hamilton had envisioned, an order in which Presidents, unlike monarchs, would not be above the law.
Authoritarians like Trump disdain the rule of law. This is simply a definitional matter—to be an authoritarian leader is to believe the law does not apply to you but, rather, is a tool to be used selectively in order to punish your perceived enemies and protect your friends, your family, and yourself.
Unlike Trump, President Joe Biden is not an authoritarian. But the rule of law requires that even committed democrats must be held to Constitutional limits. When it comes to the power to wage war, Biden—like other Presidents since Harry Truman—has exceeded those limits, most plainly when he ordered a military strike on January 11 against Iran-backed Houthi forces in Yemen. Since then, his administration has launched four additional strikes on Houthi targets, which seem to have only bolstered the group’s ability to disrupt shipping lanes.
Progressive members of Congress, including Democratic Representatives Pramila Jayapal, of Washington; Ro Khanna, of California; and Cori Bush, of Missouri, correctly observed that Biden overstepped his Constitutional authority in ordering the initial strike.
Biden described this as a “defensive action,” but the U.S. and allied strikes on Yemen were reportedly planned for several weeks.
In 1787, the framers of the U.S. Constitution decisively broke with the then-existing British model, which invested the monarch with plenary power over foreign affairs, including matters of war and peace. When the framers assigned the power to declare war to Congress, they explained that the President would have the implied “power to repel sudden attacks.” This is a limited emergency power that the President can only use defensively, when the United States or U.S. forces face an actual or imminent attack and there is no time to go to Congress to seek advance legislative approval.
The War Powers Resolution, an ambiguously drafted statute enacted in 1973, cannot change the scope of presidential authority under the Constitution. In other words, if it granted presidential authority to order the use of military force beyond or outside the context of self-defense, the statute would be unconstitutional.
A U.S. destroyer properly acted in self-defense last month when it shot down three drones launched by Houthi forces in the Red Sea. Under such circumstances, there was, of course, no time to seek Congressional approval: the USS Carney was entirely justified, under both U.S. and international law, in acting swiftly to defend itself and nearby commercial vessels. A U.S. strike in Yemen on January 16 that was aimed at missiles reportedly “being prepared to target ships in the region” could similarly be justified as self-defense, depending on the specific context.
But the U.S. strike in Yemen on January 11 is another matter. Biden described this as a “defensive action,” but the U.S. and allied strikes on Yemen were reportedly planned for several weeks, and there is no indication that U.S. forces were acting in response to an actual or imminent attack. Instead, Biden framed the strike as a “direct response to [past] unprecedented Houthi attacks against international maritime vessels in the Red Sea.”
There may very well be good reason to order military action against the Houthis, including the strike Biden ordered on January 11. Whether to order such action is a question of policy, not law; but who has the authority to order such action is a question of law, not policy. There was time to seek approval from Congress before ordering this strike in Yemen. Under these circumstances, the President does not have unilateral authority to act.
The United States is not a dictatorship or a monarchy: war power is shared between the President and Congress, with unilateral presidential authority limited to the emergency or defensive context. The Constitution, however, is not self-executing. It is up to members of Congress to exercise their constitutional role and enforce limits on presidential power. Jayapal, Khanna, Bush and other legislators were on solid ground in objecting to Biden’s action as unconstitutional. More members of Congress should join with them to insist on exercising the legislative branch’s constitutionally required role when it comes to war power.