The President Can’t Start a War Without Congressional Approval [Unless He Wants To]

US strikes against Houthi targets in Yemen highlight Capitol Hill’s virtue signaling and faux attempts to limit the executive branch’s war powers

Photo credit: Reuters: Mohamed Abd El Ghany

[Because they’re applicable today, some portions of this story were taken from an article first published by this page in June 2022.]

Predictably, the select group of congressional members who followed President Biden’s repeated bombings of Houthi assets in Yemen with tweets and statements, haven’t bothered to do much else.

The Houthis are a Shia Muslim group from Northern Yemen that overthrew the government of Abd-Rabbu Mansour Hadi and seized the capital in 2014. A coalition led by Saudi Arabia and supported by weapons supplied by the US then intervened, resulting in a devastating war that killed hundreds of thousands of people. The Houthis are backed by Iran.  

With the official Palestinian death toll soaring past 25,000 and continuing to rise daily as a result of Israel’s indiscriminate and relentless bombing, the Houthis have pledged to retaliate by targeting all ships sailing towards Israel, regardless of the vessels’ origin.

"If Gaza does not receive the food and medicine it needs, all ships in the Red Sea bound for Israeli ports, regardless of their nationality, will become a target for our armed forces," a spokesperson for the group was quoted in early December as saying. It’s a promise the Houthis have followed through on, attacking numerous vessels transiting the Red Sea over the past few weeks.

The Biden administration swiftly concluded that these confrontations should be met with military force inside Yemen’s borders. The US Constitution dictates that this is an opinion Congress must agree with prior to any missiles being launched.

“The President needs to come to Congress before launching a strike against the Houthis in Yemen and involving us in another middle east conflict. That is Article I of the Constitution. I will stand up for that regardless of whether a Democrat or Republican is in the White House,” Congressman Ro Khanna wrote on X on January 11.

Unsurprisingly, the White House didn’t listen. Because this purely performative warning wasn’t paired with any realistic restriction or consequence, the president ignored it and ordered strikes against Yemeni targets anyway.  

As they’ve done so many times in the past, the members of Congress who insisted that Joe Biden must obtain their approval have moved on.

They’re not threatening to withhold their votes on future pieces of legislation in a way that would compel party leadership to slash funding for the Pentagon’s overseas operations. They haven’t started impeachment proceedings and they’re not whipping votes for the president’s removal. If the lawmakers on Capitol Hill truly cared about the abuse of presidential power, they’d utilize all of the mechanisms in their toolkit to try to do something about it. As of this writing, this has yet to happen.

Members love to posture and pretend about the sanctity of the Constitution. They never miss an opportunity to scream and holler about the importance of keeping the president in check. Because they value their careers much more than upholding these principles, they rarely, if ever, actually do anything about them.

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Like so many other issues, how to most effectively regulate the president’s war powers has bifurcated Congress into two separate camps: the group that openly embraces its constitutional neglect and the group comprised of lawmakers like Congressman Khanna that still takes the time to cosplay oversight via empty statements that lead nowhere.

Adam Kinzinger and his reaction to the Russian invasion of Ukraine is an example of the former.

In April 2022, the Illinois congressman introduced H.J.Res. 83: Authorization for Use of Military Force (AUMF) to defend America’s Allies Resolution of 2022, an open-ended piece of legislation that doubled down on the mistakes of the last 20 years and raised the likelihood of a direct confrontation with Russia.

The bill Kinzinger had proposed was incredibly short. It wasn’t much longer than its 2001 counterpart, which authorized President Bush, and every commander-in-chief that has followed him, “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…”

The legislation introduced by Kinzinger was just as ambiguous and had the intention of granting the president just as much power. According to this bill, “Upon making a determination that the Russian Federation has used chemical, biological, or nuclear weapons in the territory of Ukraine, the President is authorized to use the Armed Forces of the United States as the President determines to be necessary and appropriate” in order to defend Ukraine.

Over a period of more than 20 years, four consecutive administrations executed the so-called War on Terror with nearly complete autonomy, operating with little to no oversight from Capitol Hill. With the US now transitioning to a much more consequential competition with Russia and China, Kinzinger’s bill aimed to somehow expand that power even further, leaving it up to the White House to determine the correct course of action for how to deal with countries the Biden administration has admitted it wants to weaken.

Other lawmakers at least try to pretend to act as a check on presidential power. Kinzinger – who retired from Congress at the end of 2022 – was explicitly begging to restore and, in fact, broaden the commander-in-chief’s king-like power to declare war.

Kinzinger’s idiotic bill went nowhere but is still worth examining. While none of his colleagues co-sponsored the legislation, their silence on the US government’s expansive foreign policy portfolio essentially telegraphs its central premise: when it comes to war, the president is free to do as he pleases.

Quite a few members of Congress appear to disagree. In the midst of President Biden’s ongoing bombing of Yemen, a bipartisan chorus of lawmakers has come together to disavow what they’ve deemed to be a deeply problematic and unconstitutional act.

“@POTUS is violating Article I of the Constitution by carrying out airstrikes in Yemen without congressional approval,” Michigan Democrat Rashida Tlaib noted. “The American people are tired of endless war.”

Echoing this sentiment on the Republican side was Senator Mike Lee, who tweeted that “the Constitution matters, regardless of party affiliation.”

Numerous other members shared similar expressions of faux outrage before moving on to other matters.

Sadly, the difference between these two sides has been purely rhetorical. Even tangible responses to the president’s decision to use military power have been questionable.  

Take, for example, Chris Murphy’s prior attempts to limit the war powers of the White House.

A few years back, the senator introduced the National Security Powers Act of 2021 (S. 2391), ostensibly intended to limit “the constitutional authority of the President as Commander-in-Chief to introduce United States Army Forces into hostilities or into situations where there is a serious risk of hostilities…”

The bill wasn’t actually designed to do this.

While the legislation was supposedly crafted to prevent presidents from using ambiguous language to justify unilateral action, the bill was itself pretty vague and contained tons of loopholes any administration could’ve quite easily wiggled their way through to get to their desired action.   

For starters, the bill’s definition of the word “hostilities” didn’t include “activities undertaken pursuant to section 503 of the National Security Act of 1947 (50 U.S.C. 5093) if such action is intended to have exclusively non-lethal effects.”

According to the section in question, “the President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States…”

What this essentially means is that, according to this proposed bill, the president actually could have authorized covert action at any moment, for any reason, and even a bill written with the explicit intent of limiting his wartime powers wouldn’t have been able to stop him from doing so.

Murphy’s bill also stipulated that the president would be required to withdraw US forces from a foreign engagement if Congress doesn’t sign off on the operation “within 20 days after the introduction of United States forces into hostilities or a situation where there is a serious risk of hostilities…” According to the text, the bill would’ve allowed the White House to extend this 20-day period by an additional 10 days if the president thought it was necessary.

Some will insist that such powers are necessary to prevent imminent threats against the US homeland, but history has shown that covert operations are routinely used to overthrow democratically elected leaders and engineer certain outcomes on foreign soil that align with US interests, not protect Americans.  When the White House does anything, it always insists that its actions are time-sensitive, of the utmost importance, and critical to national security. Americans are always told that US operations overseas are defensive and unprovoked. Shortening this time requirement from 60 to 20 days offers the appearance of reform but does little to rein in the presidential powers that Murphy and other “anti-war” Democrats have spent years pretending to oppose. It’s a framework that, in essence, allows the president to do as he pleases for up to a month.

After that time period lapses, Section 108 would have triggered an automatic funds cut-off for any operations that Congress hasn’t authorized. This was perhaps the most important – and the most promising – part of the bill. But things like this are only useful for a Congress committed to ending our wars and challenging the White House. However, the executive and legislative branches of our government function as a single organism and there’s little use in pretending otherwise.

The bill’s “Arms Export Control” section is especially amusing. According to Sec 203 (b)(2), the US government wouldn’t have been allowed to sell arms to NATO countries and Israel until a joint resolution authorizing a sale has been passed by Congress.

Anyone waiting for a Congress funded by the defense industry to suddenly limit the lucrative arms trade or stop its unflinching and unconditional support for Israel shouldn’t hold their breath because it simply isn’t going to happen. This, quite simply, just isn’t something Congress is ever going to do.

Because the Biden administration has been engaging Houthi forces since October, the Pentagon’s ongoing campaign in the Red Sea does not constitute an “emergency” by any stretch of the imagination. Congress has had more than enough time to debate and vote on this matter but has yet to do so.

Congress will never exercise its responsibility to check the president’s power in this regard. And if it somehow ever did [and this legislation had become law], tucked away in the middle of Murphy’s bill was a provision that would’ve immediately voided that decision.

According to Section 205, this congressional authority could have been waived if the president “determine[d] that an emergency exists requiring a proposed transfer of defense articles or defense services in the national security interests of the United States,” rendering the previous section completely useless.

The timeframes specified in the bill are also important.

According to section 101, after granting authorization for military action, approval would’ve remained effective for two years. Many Americans have been desensitized by more than two decades of perpetual conflict, but that’s about half as long as our involvement in World War II.

Furthermore, section 202(b) specifies that national emergencies declared by the president, after being approved by Congress, can last for as long as five years.

Today, this is what passes as a “check” on the executive branch. While the legislation proposed by Murphy would’ve presented the White House with a few more hoops to jump through, it wouldn’t have prevented unilateral action.

And although the specifics of the bill are important, their inadequacies are all moot. Even though Murphy’s party controlled the entire federal government at the time this bill was introduced, it never saw the light of day and died a quick death without ever receiving a committee hearing.

For all intents and purposes, the congressional divide on presidential war powers breaks down between the lawmakers who are honest about their abdication of responsibility and those who are still pretending to be doing their job.

Even if it somehow did become law, it would still need to be enforced by a Congress which has shown no interest in limiting US engagement overseas. The bill Chris Murphy sponsored in 2021 is filled with legislative holes you can drive a Humvee through; even if it wasn’t, it would still need to be implemented by a Congress just as hawkish as the White House.

The sporadic rhetoric of lawmakers like Murphy – along with co-sponsors Bernie Sanders, Ed Markey, Mike Lee, and Elizabeth Warren – evaporates when it’s needed the most. Bills like S. 2391 may give off the impression that an authentic anti-war movement exists in Washington, but Capitol Hill accommodates the American War machine just as reliably as Pennsylvania Avenue does.

In the wake of the president’s ongoing Red Sea campaign, most of the lawmakers who chose to comment on the weekly strikes supported them. In fact, a good chunk of the commentary said that the strikes were long overdue, and that the Biden administration should be even more forceful against the Houthis.

Still, the matter has yet to be voted on. Just because President Biden’s unconstitutional aggression has the support of some members of the House and Senate, that doesn’t mean that the majority of Congress agrees. Much more importantly, it doesn’t necessarily mean that the majority of Congress would be willing to officially attach their name to the potential consequences of repeatedly engaging an Iranian-backed militia.

For more than three months, the US military has been striking foreign targets in a prolonged campaign Congress has yet to approve.

The closest thing to pushback has once again come in the form of a boilerplate form letter that the White House can [and absolutely will] comfortably ignore.

With humanity on the verge of a potential century-defining global conflict, the individuals with the power to prevent disaster are opting to sit on the sidelines.