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Biden’s Strikes in Yemen Are Unconstitutional, Bipartisan Members of Congress Say (theintercept.com)

submitted 10 months ago by [email protected] to c/[email protected]

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[–] [email protected] 1 points 10 months ago (1 children)

Congress gave the president this power. It's constitutional, for now. I don't agree with it. But as long as the war powers act is in place this is constitutional. They should take it back. The sooner the better. But this is the best we'll get.

[–] sugar_in_your_tea 1 points 10 months ago* (last edited 10 months ago)

The War Powers Resolution doesn't grant the President powers, it restricts them. The opening text says this (emphasis mine):

(c) Presidential executive power as Commander-in-Chief; limitation

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.

The closest is the third, since this was a response to an attack on ships, some of which are from the US. But it specifically says "national emergency," and since the attacks weren't directed at US ships in particular, it doesn't seem like a national emergency to me.

I'm not sure if this part is legally binding, but it does help clarify the rest of the bill. The most cited part is the reporting requirement, but just spelling out the reporting requirement doesn't mean any action by the sitting president is fine.

So my understanding of the bill is that Presidents may not initiate armed conflict without a declaration of war, specific authorization, or national emergency. Since none of those appear to apply, the strike is unconstitutional.

That said, there are so many cases of Presidents violating this resolution (at least in the way I understand it) that there's a argument that precedent makes it functionally legal. I disagree, but that seems to be the strongest defense here.

I'm guessing Biden will get away with it like every other president has, but that doesn't mean it's okay.