FACT CHECK: Does The President Have The Authority To Strike The Houthis?

Elias Atienza | Senior Reporter

Multiple members of Congress claimed that President Joe Biden did not have the authority to strike the Houthis without congressional approval.

Verdict: Unsubstantiated

The White House maintains that the president does have the authority to strike the Houthis without congressional approval. While a few legal experts agreed that he does, at least one legal expert, though, disagreed.

Fact Check:

The U.S. carried out more airstrikes against the Houthi rebels in Yemen, striking missile sites, according to ABC News. The U.S., alongside the U.K., struck Houthi installations on Jan. 11, the outlet reported.

Multiple members of Congress said that Biden needed authorization from Congress before he struck the Houthis. Democratic California Rep. Ro Khanna tweeted, “The President needs to come to Congress before launching a strike against the Houthis in Yemen and involving us in another middle east conflict. 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.”

However, there is debate on whether or not the president needed to receive authorization from Congress before striking the Houthis. The president “is required under the War Powers Resolution to notify Congress within 48 hours of the introduction of U.S. forces into hostilities, the deployment of combat-equipped forces abroad, or when the president “substantially enlarge[s]” U.S. forces deployed abroad,” according to LawFare. The president did so and said that he was able to hit the Houthis under his Article 2 authority, Lawfare reported.

Article II of the Constitution states, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…” Article I states that Congress shall have the power “[t]o declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

A National Security Council spokesperson told Check Your Fact that the strikes were “fully consistent with international and domestic law.” (RELATED: Did Pope Francis Say That Jesus Was Born During A Census Taken By King David?)

Regarding the domestic legal basis specifically, the Justice Department has set out a longstanding test for the President’s constitutional authority to direct the use of military force: there must be a significant national interest at stake, and the action must be below the threshold of ‘war’ in the constitutional sense,” the spokesperson said. 

“We simply inherited that test and applied it in consultation with interagency lawyers, and the facts here easily meet that test given the attacks we had endured from the Houthis and the limited nature of the coalition strikes,” the spokesperson added.

U.S. presidents have previously used the Authorization of the Use of Military Force (AUMF) of 2001 to conduct strikes in Yemen, according to Brown University Watson Center’s Cost of War project. The AUMF was referenced in for “Yemen* (2002-2006, 2012-2021): “Direct military action against Al Qaeda in the Arabian Peninsula and ISIS.”

Legal experts differed on whether or not the president had the authority to strike the Houthis.

John Shu, a lawyer who worked in both Bush administrations, told Check Your Fact in a text message that “while only Congress has the the power to declare war and has the power to fund it,” the president has the ability to strike the Houthis.

“[T]he President has the power to initiate military action whenever necessary so long as he informs Congress within 48 hours. The Constitution is intentionally designed that way,” Shu said.

Charles “Cully” Stimson, the former Deputy Assistant Secretary of Defense for Detainee Affairs and the current deputy director of Heritage Foundation’s Edwin Meese III Center, told Check Your Fact in a phone interview that Biden was able to strike the Houthis without congressional approval.

“Now this is not a declaration of war. It falls squarely under the commander in chief’s authority under Article II to use limited proportional military strikes to go after [groups] which endanger U.S. interests in acting in self-defense. So, I think the president is entirely on very strong ground,” Stimson said.

Brian Finucane, a senior adviser at the International Crisis Group, said to Check Your Fact that the “answer is not a simple yes or no, though these strikes in Yemen raise significant legal issues that the Biden administration has not adequately addressed.”

Finucane said that these questions are whether or not the president has the “constitutional authority to order a limited military action…in the absence of congressional authorization” and “has the White House run afoul of the 1973 War Powers Act?”

“On the first point, there is considerable debate about the scope of the president’s constitutional authority to direct the use of military force without prior congressional authorization. At a minimum it is generally accepted that he/she has the authority to use military force to repel a sudden attack on the US or US armed forces. What is more contested is whether having intentionally placed US armed forces in harm’s way (such as in the Red Sea), the president may then use foreseeable attacks on those forces as a predicate for the use of force,” Finucane said.
Finucane added:

“On the second point, the War Powers Resolution requires the removal of US armed forces 60-days after they have been introduced into ‘hostilities.’ The term hostilities is not defined in the War Powers Resolution. The executive branch has generally interpreted ‘hostilities’ to mean exchanges of fire with units of hostile forces. Under this interpretation, US armed forces would appear to have been involved in hostilities in the Red Sea area since at least October 19th, when the USS Carney shot down a number of Houthi projectiles apparently targeting Israel. The US navy has been engaged in regular hostilities ever since then, even prior to the strikes of January 11/12. As a result the 60-clock for the removal of US armed forces would seem to have run out and thus if the Biden administration wants to continue the conflict with the Houthis, it needs congressional authorization.”

Finucane also wrote an article on the War Powers Resolution for Just Security before the Jan. 11 strikes. The Congressional Research Service states that the War Powers Resolution Section 2(c) “provides that the President’s powers to introduce U.S. Armed Forces into situations of hostilities or imminent hostilities 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.”

Marie Baldassarre, Khanna’s communications director, directed Check Your Fact to a tweet sent from Khanna and a tweet from Justin Amash, a lawyer and former member of Congress, on the War Powers Resolution. (RELATED: Did Donald Trump Deliver A Bigger Tax Cut Than Ronald Reagan?)

“Contrary to what you may have heard about the War Powers Resolution, it does not allow the president to take military action for any reason for 60-90 days without congressional approval so long as the president notifies Congress within 48 hours,” Amash’s tweet partially reads.

Khanna later told Check Your Fact that he “disagree[d] with the NSC’s assessment…”

“I disagree with the NSC’s assessment that bombing another country with hundreds of missiles does not constitute an act of war. Additionally, while we did endure attacks from the Houthis, these unauthorized strikes were not defensive, and instead to retaliate and deter against the Houthi attacks. If the Admin had time to put together a coalition, they had time to come to Congress. Strikes of this nature require authorization from Congress per the War Powers Act,” Khanna said.

Check Your Fact reached out to a Greene staffer for comment and will update this article if a response is provided.

Elias Atienza

Senior Reporter
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