Did Joe Biden Violate Constitution With Yemen Strikes? What We Know

U.S. airstrikes in Yemen on Thursday have led to claims, including by some Democrats, that President Joe Biden violated the Constitution by ordering attacks against the Iranian-backed Houthis, who have control of much of the country.

The United States and the United Kingdom—with support from Australia, Bahrain, Canada and the Netherlands—targeted strikes at 60 Iran-backed Houthi rebel targets in 16 locations in Yemen after the Houthis attacked ships in the Red Sea and ignoring a warning from the U.S. to stop the assaults.

The Houthis said missile and drone attacks on ships headed for Israel, which began in mid-October, were in protest of Israel's military action in Gaza. Israel has been fighting Hamas since October 7, 2023, when the Palestinian militant group carried out a surprise attack that killed roughly 1,200 people, according to the Associated Press. Since then, Israeli military strikes in Gaza have killed more than 20,000, AP reported.

Biden has said the strikes were made in "direct response" to the Houthi assaults on ships in the Red Sea, including the use of anti-ship ballistic missiles "for the first time in history."

Biden aides said they are confident that the military actions were fully consistent with domestic law, under the president's Article II authority, and international law.

Article II of the Constitution, which establishes the powers and responsibilities of the executive branch of the federal government, has been used to justify the president's authority to "direct the use of military force to protect the Nation from an attack or threat of imminent attack and to protect important national interests."

However, news of the internationally supported strikes angered Democrats who argued that the president broke agreements in the Constitution by not first consulting with Congress.

Michigan Democratic Representative Rashida Tlaib, posted on X, formerly Twitter, on Thursday that "@POTUS is violating Article I of the Constitution by carrying out airstrikes in Yemen without congressional approval.

"The American people are tired of endless war."

California Representative Ro Khanna made similar comments, writing that Biden should consult Congress before launching air strikes.

"The President needs to come to Congress before launching a strike against the Houthis in Yemen and involving us in another middle east conflict," Khanna posted on X.

"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."

With Biden facing criticism from within his own party, Newsweek consulted with experts in U.S. constitutional and federal law to see what violations, if any, the president has made.

Did Biden Violate the Constitution?

Article 1, Section 8, Clause 11 of the Constitution grants Congress the power "to declare war." The third clause of Section 10 of the article reads that "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

A Congressional Research Service analysis, prompted by the airstrike that killed Iranian General Qassem Soleimani in 2020, found the executive branch has exercised military authority without seeking Congress' approval on many occasions.

The research said that during the Obama and Trump's presidencies, the Department of Justice Office of Legal Counsel (OLC) argued there were two conditions under which the president could exercise authority without Congress' approval: if the president reasonably determines action serves "important national interests" and that the "nature, scope and duration of the conflict must not rise to the level of war" that would intrude on Congress' constitutional powers.

There have been attempts to empower Congress' say over military intervention elsewhere. The War Powers Act, passed in 1973 after the U.S. bombing campaign in Cambodia, was intended to limit the president's authority to wage war and reassert Congress' authority over foreign wars, according to the Nixon Library.

The Act states that a president may legally direct U.S. troops into conflict under a formal declaration of war, a congressional authorization for the use of force, or a national emergency created by an attack upon the United States, its territories, or its armed forces.

Dr. Richard Johnson, a senior lecturer in U.S. politics and policy at Queen Mary University of London, told Newsweek that the president still had considerable flexibility under the act as to when Congress needed to be informed.

"The War Powers Act clarifies that if the president follows the third path, then he should 'in every possible instance shall consult with Congress' before sending forces into hostilities. The term, consultation, has ironically empowered the president," Johnson said.

"'Consultation' is different than specifying that the president needs to ask Congress's permission before sending armed forces in to hostilities. 'Consult' in practice has transformed into 'inform' after the decision was already taken."

Johnson added the act had a weak enforcement mechanism, with no legal recourse to pursue the president, leaving little beyond political pressure and impeachment as a means of punishment.

David Andersen, an associate professor of U.S. politics at Durham University in England, told Newsweek that Biden had "absolute authority" to launch the strikes and that even under the War Powers Act, presidents had broad latitude to carry out strikes without approval.

"For sustained military action, like what Biden may be committing the US military to [alongside the UK], the president would likely need to communicate this to Congress for their approval," Andersen said. "If Congress does not grant that approval within 60 days, the president has 30 days to return troops away from the battlefield. That provides the president a 90-day window where he can use the US military without much oversight.

"Members of Congress know this but often like to criticize presidents from the other party for overreaching with their military authority. The War Powers Act is something that I think both political parties wish did not exist but neither has an incentive to repeal it while their party holds the presidency. Instead, they remain quiet and support their party's president and criticize the opposing party's presidents for their use of military force."

What Have Other Presidents Done?

Previous administrations have tested the limits of Congress' authority under the act and the Constitution.

As stated in a 2020 article by the Brennan Center for Justice, Biden is by no means the only president to have carried out strikes without approval. The last six presidents have authorized international airstrikes without congressional approval. Multiple OLC opinions state that the executive branch considers it has the power to do so simply based on the number of occasions it has happened.

Todd Landman, a professor of political science at the University of Nottingham in England, told Newsweek thatpresidents had long used discretion in carrying out limited strikes and then informing Congress, and while the imminent threat from Houthis may have justified attacks, the political climate gives rise to criticism.

"There is a division in world actors and powers as to the situation in Gaza, while the timing of the strikes during the ICJ consideration of the South African filing a case that accuses Israel of committing genocide will undoubtedly raise further questions," Landman added.

So while Congress retains power to approve a declaration of war, these limited actions, as long as they remain that, may be carried out on the president's orders without initial congressional oversight. But the impact of Biden's actions, and perceptions of him within his own party, may not disappear.