Strikes Against the Houthis Need Congressional Approval

Although many instances of U.S. military assistance, deployments, and operations overseas are controversial—for example, military aid to support indiscriminate Israeli bombing of Gaza, assistance to Ukraine to beat back the Russian invasion, and continued deployment and activities by U.S. forces that remain in Syria and Iraq—one that heretofore has been less controversial than the others is U.S. military jousting with the Houthis, who are launching missile and drone attacks on international shipping in the Red Sea to show support for Gazans. Yet now a bipartisan group of two Democratic and two Republican senators has sent a letter to the Biden administration, asking it to enunciate the scope and limits of what the president could do without congressional authorization of military action against the Houthis. Nevertheless, the senators said they supported that mission.

Since it has not sought congressional approval for planned offensive strikes on Houthi command centers and weapons storage bunkers on land, the administration is violating the Constitution and the War Powers Act of 1973. The defense of U.S. warships and commercial shipping may pass as self-defense. Still, a strict textualist or originalist interpretation of the Constitution clearly requires some form of congressional approval for offensive actions, regardless of how limited, against the territory of another country.

According to James Madison’s copious notes of the Constitutional Convention of 1787, the framers foresaw that the president might need to use the military to defend the country while the Congress was out of session. In the eighteenth century, with the agricultural economy and slow methods of transportation and communication, members of Congress were often out of session and incommunicado. Thus, the convention delegates granted Congress the power to “declare” rather than “make” war. Madison’s notes indicated that this change allowed the chief executive to take unilateral defensive action, anticipating that Congress would declare war or authorize offensive action against the enemy when it reassembled.

In 1801, Thomas Jefferson, the third president of the United States, dispatched U.S. warships to defend American commerce in the Mediterranean Sea against the Barbary pirates when Congress was out of session. Even this deployment stretched the Constitution’s framers’ original intent of unilateral self-defense of U.S. territory and territorial waters. However, when Jefferson wanted to order attacks on the pirates’ ports, he obtained congressional approval. This historical episode best parallels the current situation with the Houthis and clearly required congressional approval before the first offensive strike on Houthi assets onshore on January 11, 2024.

Unfortunately, over time, the original constitutional interpretation was eroded. The final straw occurred during the Vietnam War when Presidents Lyndon B. Johnson and Richard Nixon took advantage of an open-ended congressional Gulf of Tonkin Resolution to escalate the Vietnam War and expand it into neighboring Laos and Cambodia. In response, Congress passed the War Powers Resolution of 1973, which requires that sixty days after the president “introduces” U.S. forces into imminent or actual “hostilities,” he or she must withdraw them if Congress has not authorized their presence. On March 12, 2024, the conflict with the Houthis reached the sixty-day deadline, not only without congressional approval but without the administration even requesting one.

Like many other administrations since the resolution’s inception in 1973, the Biden administration has claimed it respected the Constitution and the resolution through clever wordsmithing. According to the New York Times, an administration official asserted that the Justice Department’s Office of Legal Counsel claimed the administration could offensively attack the Houthis without going to Congress because the strikes “served a significant national interest and their scope and risk did not rise to what was ‘war’ in the constitutional sense.” However, one of the framers’ primary purposes in requiring congressional approval of military action was that one person—the chief executive—could not determine the national interest or create a situation that could escalate into a major war.

Biden administration officials claimed it did not “introduce” the naval forces attacking Houthi assets because the U.S. Navy already had a presence in the Red Sea. However, the law says the resolution’s clock starts when U.S. forces are introduced into imminent or actual hostilities and has nothing to do with the mere U.S. force presence in the area (after all, there are hundreds of U.S. military bases around the world). Finally, the administration official argued that the anti-Houthi strikes did not rise to the level of risk or combat tempo of “hostilities” needed to start the clock, citing the episodes of Ronald Reagan’s guarding oil tankers in the lethal Persian Gulf tanker war of 1987 and Barack Obama’s air war over Libya in 2011—both of which the Congress allowed to escape the sixty-day clock.

Yet, just because Congress failed to enforce the Constitution and War Powers Act in the past doesn’t mean it should not start now. This episode is an easier call than most because Biden’s military actions to ensure freedom of navigation on a major international shipping route have bipartisan and international support. If Congress cannot reassert its constitutional duty to approve consequential U.S. military actions now, will it ever?