There are few more serious crimes a president can commit than launching a war without the approval of Congress.
Yesterday, the United States military launched a over a dozen airstrikes at the country of Yemen — an unambiguous act of war that multiple members of Congress have already decried as unconstitutional.
“POTUS is violating Article I of the Constitution by carrying out airstrikes in Yemen without congressional approval,” Rep. Rashida Tlain explained in a statement posted on Twitter. “The American people are tired of endless war.”
Congressmen like Cori Bush, Ro Khanna, Barbara Lee, Mark Pocan, Summer Lee, Val Hoyle, Sara Jacobs, quickly followed suit with similar statements.
The two most prominent legal defenses of Biden’s new war fail any kind of minimal legal scrutiny. Liberals like former Senatorial candidate Amy McGrath and conservatives like Ben Shapiro have both pointed to the War Powers Act as endowing Biden with the authority to go to war without Congressional approval. But in the War Powers Resolution, opening §1541 is unambiguous:
(c) 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.
None of these points somehow supercede the Constitution; on the contrary, the president’s constitutional powers and authorities are the direct subject of this part of the code, which only narrows it further. As Just Foreign Policy comms director and policy advisor Aída Chávez flagged earlier today, Biden made his own understanding of the president’s war powers quite clear in an April 4, 1984 speech to the Senate:
The President does not have the authority to make war, he has the authority to conduct war. A Commander in Chief does not initiate a war, he conducts a war…in this amendment, it says, “Mr. President, we understand that if the United States is in jeopardy, you have to act quickly. We understand, Mr. President, if Americans are in jeopardy, you have to act quickly. But Mr. President, if you want to make this an American war, short of those two things, come and tell us, let us know. Let us be part of what is our constitutional obligation.”
Biden’s allusion to a emergency scenario brings us to the second legal defense: that the US is fighting a defensive war. This seems to be the defense that Biden himself hopes to rely upon; in today’s statement announcing the strikes, Biden characterized them as a “defensive action” that followed an “extensive diplomatic campaign and Houthi rebels’ escalating attacks against commercial vessels.”
Here the waters are a little murkier since Biden is relying on the implicit claim that he is responding to “a national emergency.” He can certainly argue that Houthi rebels, by attacking vessels in the Red Sea, pose an obstacle and danger to “US interests” as the government would define them — that is, he can argue this in pursuit of a declaration of war from Congress. But if Biden wants to take advantage of the WPR’s exception that allows him to act and then seek Congressional approval, he has to demonstrate that something more is at stake: something that merits the vague but potent name of a “national emergency.”
The law is pointedly ambiguous about this phrase. Since it is not defined by statute, courts have to rely on precedents and rules of interpretation in order to litigate it. A 2019 study by the Congressional Research Service, for example, found that relying on the “ordinary meaning” of the terms,
a national emergency may be defined as a sudden unforeseen set of circumstances posing a danger to the nation to an extent that requires prompt action to avert disaster.
The notion that Biden is responding to circumstances that are “sudden” and “unforeseen” seems particularly dubious in this case. Biden specifically defends his war as a “direct response to unprecedented Houthi attacks against international maritime vessels in the Red Sea” — but these are attacks that began nearly two months ago. In the meantime, the Biden administration has had the time to engage in enough high-level diplomacy to pull off a resolution at the UN Security Council against the attacks and to build the coalition that launched today’s attacks. That something about the sudden-ness of these attacks prevented Biden from securing Congress’s permission to act is on its face completely implausible.
Remarkably, Biden himself was skeptical of this sort of appeal to false urgency in order to justify circumventing Congress en route to war. During the same Congressional hearing, Senator David Boren defended an expansive reading of “national emergencies” because of the danger of nuclear war:
We do not have perfect foresight. Emergencies arise, and in this terrible nuclear age in which we live, because of necessity and short warning time, the Commander in Chief, as a practical matter, is already vested with authority, if he received a 15- or 20-minute warning, to unleash massive amounts of incredible power.
But Biden rejected extending this analogy to the actual war that was under consideration — a war with El Salvador:
Mr. President, this is not a nuclear strike. The fact of the matter is the analogy is not at all appropriate…would anyone suggest to me that if it took 6 months for a missile to fly from Moscow to the United States, the Congress sould play no part in determining what we should do? Is that what you are saying to me? We know what is happening down there [in El Salvador], fellow. Is this a surprise to you? We know.
More recently, Biden attacked another declaration of national emergency: Donald Trump’s on immigration. Biden ridiculed that characterization as “constitutionally dubious” during his campaign and once in office “determined that the declaration of a national emergency at our southern border was unwarranted” in a letter to Congress. In this, Biden concurred with the standard legal critique laid out in an amicus curiae brief by a hundred former House members:
Emergencies are sudden and immediate, not longstanding and static…Plainly in providing presidential authorities to deal with “emergencies,” Congress intended those powers to apply only to issues that Congress had not had the opportunity to consider and that were too urgent for it to consider before the expenditures had to be made.
Ironically, Biden’s efforts to defend his attack on Yemen as a considered and meticulously coordinated response to a persisting threat only undermine any hope he has of spinning it as a sudden imminent crisis that left him with no time to ask permission. It is impossible to understand this as the sort of national emergency that demanded action prior to Congressional approval; the case that Biden has gone to war unconstitutionally is, as his critics in Congress allege, open and shut.
The case for impeachment
From here, the legal case for impeachment is straightforward. Committing to the United States to war, placing at risk the lives of Americans and national rivals alike, is one of the most terrible responsibilities entrusted to our government. Acting outside of the power given to him by the Constitution, Biden has brazenly usurped that responsibility from Congress. He has done this knowing perfectly well that there has been considerable opposition in Congress to precisely this action; Senator Bernie Sanders introduced a resolution to remove US forces from Yemen just last year, citing precisely these concerns, and Biden himself had pledged to end military action in the country.
Congress has considerable latitude to determine what qualifies as an impeachable offense under the Constitution. And historically, Presidents have been impeached for much less: lying about a blowjob and pressuring foreign governments to investigate political opponents. That Biden’s conduct qualifies in this case as a “high crime and misdemeanor”, the standard set by the Constitution, is beyond any serious dispute; the only question is whether Congress will hold him accountable for it.
From a political perspective the case for impeachment is just as strong. Biden’s blatant violation of the Constitution’s separation of powers is not a spontaneous or unprecedented infraction. It is simply the latest instance of a longstanding trend of presidents encroaching upon Congress’s warmaking authority. Historically, however, this trend has often advanced in such tiny and ambiguous steps — a “very limited operation” in Libya here, a mere extension of Bush’s Authorization for Use of Military Force there — that it has been difficult to build a case against it. Most recently, Trump’s unauthorized assassination of Iranian commander Qassem Soleimani prompted Bruce Ackerman at The American Prospect to propose impeachment as
Impeachment, however, provides a new weapon to Congress in its struggle to demonstrate that its exclusive authority “to declare war” represents a real-world check on presidential power, and not merely a meaningless symbolic gesture to the Founding Fathers. While the Constitutional Convention found itself divided on many big issues, delegates were united on one fundamental point. The president could not behave in the manner of King George III and launch the country into war whenever he liked. Until now, however, there has never been an occasion to establish that unilateral presidential war-making represents the paradigmatic “high crimes and misdemeanors” denounced by the framers.
This is precisely the moment at which the House Judiciary Committee should add a third count to its bill of impeachment condemning Trump’s escalating intervention against Iran.
If Trump’s strike against Soleimani was an impeachable offense, and one that provided Congress with a much-needed opportunity to reclaim its warmaking powers, then surely Biden’s far more expansive attack on Yemen is an even stronger candidate. Whether Biden should be removed from office for this crime is a distinct question, of course, but whether he should be impeached for the crime seems to me completely beyond serious dispute.
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