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Biden Prepares for Extended Yemen Bombing, Triggering Constitutional Alarm Bells

Under what authority is the president acting?

President Biden Convenes a meeting of the Reproductive Healthcare Task Force

The United States and Britain conducted another round of strikes Monday on the Houthi rebels as the Yemen-based group continues to disrupt international commerce in the Red Sea as a response to the war in Gaza. It was the United States’ eighth time striking the Houthis since January 11. When President Joe Biden initially started striking the Houthis, his administration claimed the strikes were constitutionally permissible and strategically sound, meant to both thwart immediate threats and establish deterrence.

A little less than two weeks later, the Biden administration is telling the American public to settle in and prepare for a longer, sustained campaign against the Houthi rebels. Openly admitting plans for such a crusade, however, raises essential questions on the constitutionality of the president’s actions and his administration's broader Middle East strategy.

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Administration officials, who spoke to the Washington Post on the condition of anonymity, told the Post that the administration is gravitating towards a longer-term strategy to erode the rebel’s capacity to disrupt international commerce. “We are clear-eyed about who the Houthis are, and their worldview,” one unnamed senior official told the Post. “So we’re not sure that they’re going to stop immediately, but we are certainly trying to degrade and destroy their capabilities.”

For the past week, The American Conservative has drawn attention to the administration’s attempt to shift the goal posts for this intervention.

After the United States’ first round of strikes against the Houthi rebels on January 11, the U.S. and partner nations appropriated the rhetoric of deterrence and de-escalation.

A statement from the U.S. and U.K., joined by Australia, Bahrain, Canada, Denmark, Germany, Netherlands, New Zealand, and the Republic of Korea, claimed, “These precision strikes were intended to disrupt and degrade the capabilities the Houthis use to threaten global trade and the lives of international mariners in one of the world’s most critical waterways.”

“Our aim remains to de-escalate tensions and restore stability in the Red Sea,” the statement continued. “But let our message be clear: we will not hesitate to defend lives and protect the free flow of commerce in one of the world’s most critical waterways in the face of continued threats.”

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The Biden administration can claim its actions in the Middle East are meant to deter further Houthi attacks and de-escalate the situation all it wants, but that doesn’t make it true. While deterrence seeks to prevent a power from taking unwanted action, what the Biden administration seems to be pursuing in Yemen is “compellence,” which is an effort to pressure an actor to change its behavior through the use of force. As Will Ruger, president of the American Institute for Economic Research, recently told TAC, “Deterrence is when you signal that you’re going to do X if the other actor does Y. Instead, this is a form of compellence. It’s aiming to compel the adversary to do something that you want it to do.”

Rather than being deterred, the Houthis vowed to continue their Red Sea campaign. In one instance, the Houthi rebels damaged a Maltese-flagged and Greek-owned commercial vessel with a ballistic missile.

Nevertheless, administration officials continued to speak out of both sides of their mouths. “We did not say when we launched our attacks, they’re gonna end once and for all,” claimed national security adviser Jake Sullivan in an address to the World Economic Forum last week.

“We have to guard against and be vigilant against the possibility that in fact, rather than heading towards de-escalation, we are on a path of escalation that we have to manage,” Sullivan added.

The double-speak continued in the wake of Monday’s strikes. The U.S. and U.K., supported by Australia, Bahrain, Canada, and the Netherlands, hit eight different Houthi targets in Yemen on Monday. The sites, according to a joint statement from the involved powers, included an underground storage facility and others “associated with the Houthis’ missile and air surveillance capabilities.”

While the strikes were “intended to disrupt and degrade the capabilities that the Houthis use to threaten global trade and the lives of innocent mariners,” the countries admitted they had done little to change Houthi behavior, given “a series of illegal, dangerous, and destabilizing Houthi actions since our coalition strikes on January 11.” The statement concluded much like the previous statement:

Our aim remains to de-escalate tensions and restore stability in the Red Sea, but let us reiterate our warning to Houthi leadership: We will not hesitate to defend lives and the free flow of commerce in one of the world's most critical waterways in the face of continued threats.

The president’s comments were more direct: “Are they stopping the Houthis? No,” Biden told a gaggle of reporters. “Will they continue? Yes.”

Despite admitting the shift in the Biden administration’s approach to the Post, the anonymous administration officials still couched the president’s actions in the language of deterrence. The Post’s story, paraphrasing the officials, claims that the administration is seeking “to provide a sufficient deterrent so that risk-averse shipping companies will resume sending vessels through the region’s waterways.” 

The officials also reportedly told the Post that, while the administration is looking towards the long term, they do not expect the operations to counter the Houthis will carry on for years like other recent U.S. forays into the Middle East. Yet the administration officials acknowledged they could not provide a benchmark for when the Houthis’ capabilities will adequately be degraded or an approximate end date to the Biden administration’s hostilities.

“It’s impossible to forecast exactly what’s going to happen, and certainly not [to predict] future operations,” one official claimed.

“We’re not trying to defeat the Houthis. There’s no appetite for invading Yemen,” an unnamed diplomat told the Post. “The appetite is to degrade their ability to launch these kind of attacks going forward, and that involves hitting the infrastructure that enables these kind of attacks, and targeting their higher-level capabilities.”

Yet U.S. officials did not initially expect the interventions in Afghanistan, Iraq, or Syria to carry on for years, much less decades, when they began—and that’s raising eyebrows in Washington.

“The Biden administration’s strikes against Houthi targets in Yemen demonstrate why Congress needs to seriously debate outdated AUMFs,” Senator Mike Lee of Utah said in a written statement to TAC. “They also demonstrate the perils of our continued abdication of congressional war powers.”

On Tuesday, Lee signed on to a letter to Biden with Senators Tim Kaine of Virginia, Todd Young of Pennsylvania, and Chris Murphy of Connecticut challenging the constitutionality of the president’s actions. While the senators acknowledge Biden has the authority “to defend U.S. personnel and military assets from attacks and imminent attacks” and, arguably, “to defend U.S. commercial shipping,” the quartet argues that “most vessels transiting through the Red Sea are not U.S. ships, which raises questions about the extent to which these authorities can be exercised.”

“The Administration has stated that the strikes on Houthi targets to date have not and will not deter the Houthi attacks, suggesting that we are in the midst of an ongoing regional conflict that carries the risk of escalation,” the letter continued. “We have long advocated for deliberate congressional processes in and authorizations for decisions that put service members into harm’s way overseas. There is no current congressional authorization for offensive U.S. military action against the Houthis.”

The senators also note that Biden has “only submitted one notification to Congress under the War Powers Act, despite having conducted several rounds of strikes against Houthi targets,” and request “an explanation in writing of the legal authority” the president is using to justify previous or future strikes against the Houthi rebels.

“The Biden administration falsely claims that it can lawfully place troops in hostilities and engage in arguably offensive strikes simply by submitting a notification to Congress after the fact,” Lee told TAC. “If this administration wants to engage in a long-term campaign in Yemen, it must make the case to Congress and receive specific authorization, as the Constitution requires.”

“Given what the administration itself is saying, we are well beyond pure defense,” Ruger wrote in an email to TAC. “If we actually followed our Constitutional design in foreign policy, it would be past time for President Biden to go to Congress with a request to authorize the use of force and for Congress to have a robust debate about the policy.”

Ret. Col. Douglas Macgregor, a contributing editor to The American Conservative, commented to TAC via email: “Americans live under a post-Constitutional Government.”

Macgregor added, “No one in the House or Senate has debated the constitutionality of Presidential military action since 2001. The War Powers Act has never been applied.”

If the administration cared about the constitutionality of attacking the Houthis, things would be done much differently, Macgregor suggested.

“Since the Houthi actions do not pose an immediate threat to the United States or the American People the use of force would seem to require congressional approval. (It’s not an emergency),” Macgregor explained. “However, the American electorate shows no sign of being interested in what happens and Congress is ready, as always, to defer to Executive Authority.”

If Congress wanted to change its cowardly ways, it “should vote to immediately stop funding for U.S. Military Operations and Forces in the region until the President presents his case for action,” Macgregor said.

“The Founders wisely put the war power in Congress’ hands so that the peoples’ representatives could debate the best path forward, to understand the costs and benefits of alternative approaches, and bring the country behind a war policy if it were required to meet our national interests,” Ruger said. “But instead the Biden administration wants to go it alone,” he added, “so they shouldn’t be surprised if the policy fails for the people to blame them alone.”

“The narrative is irrelevant to the facts,” Macgregor argued. “The goal is to goad Iran into attacking U.S. Forces, thus providing the pretext for war with Iran.”

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