At Vox, Tara Golshan: Trump ignored Congress on war powers. Constitutional scholars want Democrats to take him to court. From the introduction:
A group of constitutional scholars and lawmakers want House Speaker Nancy Pelosi to take President Donald to the Supreme Court over the war in Yemen.
Their case is straightforward: Trump is unilaterally involving the United States in war, and that’s unconstitutional. For four years, the United States has participated in a war in Yemen that was never authorized by Congress and that Congress expressly told Trump to withdraw from. Trump ignored the directive. Now, as the White House escalates tensions with Iran, there’s growing concern that unless legal action is taken, Congress will cede more war powers to Trump.
…
“The president’s veto [of the bill to end involvement in Yemen] doesn’t end this conversation,” Bruce Ackerman, a constitutional law scholar with Yale University, told Vox. He’s one of a diverse group of legal experts who have sent Pelosi a letter urging her to take legal action.
And from further along:
The United States got involved in Yemen four years ago when Saudi Arabia and its allies began a military campaign in Yemen against Iranian-backed Houthi rebels. The US is providing Saudis with intelligence, arms and ammunition, and, until late last year, fuel for their warplanes.
…
“This is a moment of truth, both for the congressional war power and for the Supreme Court of the United States,” Ackerman said. “Does the Supreme Court of the United States — and its claim of originalism — is that supposed to be taken seriously?”
I signed the letter (which isn’t public yet — I’ll provide a link once it is). The hard question, I think, it whether the U.S. involvement in Yemen is a “war” for constitutional purposes. Of course I think that under the Constitution’s original meaning only Congress has the power to initiate war (or authorize the President to initiate it).
It seems implausible that Congress has authorized the Yemen action, both because of the recently vetoed bill but even more so because the Yemen rebels appear to have nothing to do with al Qaeda. (Congress’ 2001 authorization to use force against al Qaeda and its allies appears to be the only remotely plausible basis of congressional authorization). I also think it is appropriate for courts to decide some (though not all) war powers questions, as discussed here.
So that leads back to the question whether the U.S. is engaged in “war” in Yemen. And that depends both on facts on the ground (which may be somewhat uncertain) and on the difficult question of when military support for an ally becomes a war. (It’s much less clear in Yemen than, for example, with respect to President Obama’s intervention in Libya, which I discussed in this article). But in any event it seems entirely appropriate for Congress to raise objections.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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