In a prior post, I referred to a scholars’ letter regarding the conflict in Yemen: Is the Yemen Conflict Unconstitutional? The letter is now publicly available here, via Ilya Somin at Volokh Conspiracy, who has further comments: Legal Scholars’ Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War.

In addition to me and Professor Somin, the signers are Bruce Ackerman (Yale), the principal drafter; Richard Albert (Texas); Rosa Brooks (Georgetown); Erwin Chemerinsky (Berkeley); Mary Dudziak (Emory); Michael Glennon (Tufts); Jon Michaels (UCLA); Mary Ellen O’Connell (Notre Dame); Aziz Rana (Cornell); Scott Shapiro (Yale); and Ruti Teitel (New York Law School).

From my prior post:

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.

NOTEThis 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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