The United States may now be at war.
We don’t know for sure because Congress hasn’t “declared war.”
An Iranian-linked group killed three U.S. military personnel in Jordan over the weekend.
Last week, the United States attacked “facilities used” by the Iranian-backed Kataib Hezbollah militia and other Iranian-linked groups in Iraq. The United States now launches regular attacks against the Houthis.
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Jordanian soldiers patrol along the border with Syria on February 17, 2022. (Khalil Mazraoui/afp/AFP via Getty Images)
The Houthis are a Yemen-based rebel group fighting the influence of the United States, Israel, and Saudi Arabia on the Arabian Peninsula. A proxy war is underway in Yemen between Iran and Saudi Arabia. The Houthis support Palestinians and oppose Israel in the war currently raging in Gaza. The Houthis are attempting to disrupt Red Sea shipping by attacking commercial ships, as the United States and Western countries support Israel.
The UN Security Council adopted a resolution calling on the Houthis to cease their onslaught of attacks on ships sailing in the Red Sea, but the attacks have not stopped. That’s why the US is retaliating.
This is why the US lost two SEALs in the Gulf of Aden last week. The SEAL died during a mission using a specialized speedboat. The SEALs attempted to board a primitive cargo ship in the Arabian Sea. One person fell off a ladder in the rough seas. Another jumped in to find the other. Both SEALs died.
So here we have the United States firing missiles and actually losing American service members in overseas military operations, neither of which have happened once in the nearly two years that Ukraine has been at war with Russia. Iranian supporters are killing American service members in Jordan. So what happens to the United States militarily, politically, and constitutionally in terms of war or what the United States is currently engaged in?
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“I don’t know what else to call it,” said Sen. Tommy Tuberville, R-Alabama. “They’re shooting at us. We’re shooting at them. This is war.”
“They’re shooting at us. We’re shooting at them. You can call this a war,” said Sen. Tommy Tuberville. (Tom Williams/Getty Images)
But if so, who authorized this war?
Article 1, Section 8 of the Constitution provides that Congress has the power to “declare war.”
Article 2, Section 2 of the Constitution grants the president the authority as “commander in chief.”
This division has obscured who is really in charge of the country and whether the United States is actually involved in hostilities. For that matter, whether it is “at war” or not. This weekend’s attacks, the defeat of the SEALs, and the prolonged firefight with the Houthis serve as a case study.
A bipartisan coalition of senators sent a letter to President Biden specifying the “self-defense” context of the attack against the Houthis and “when U.S. forces were ‘committed to hostilities’ in Yemen and the Red Sea.” That’s why I asked. ”
It is certainly within the commander in chief’s authority to order retaliation if the United States is attacked or to escalate an invasion to prevent future incidents. But lawmakers are seeking clarification on the legal legitimacy the administration is using to carry out military operations abroad without direct parliamentary approval under Article I, Section 8 of the Constitution.
President Biden has vowed to respond to the killing of three military personnel in Jordan. (Jacqueline Martin/Associated Press)
President Biden promises action. Sen. Tom Cotton (R-Ark.) and Sen. Lindsey Graham (R.C.) have both suggested that the United States stop nibbling on Iran’s frontiers and instead attack it on its home turf. It is true that an attack within a sovereign state constitutes a “war.”
But no one has suggested that Congress “declare war” or create an Authorization for the Use of Military Force (AUMF). still. However, this could lead to such pressure if the conflict with the Houthis and other forces colluding with Iran becomes prolonged.
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Ahead of last weekend’s death toll, Senate Minority Leader Mitch McConnell (R-Ky.) said President Biden had “no obligation to use military force when American lives and national interests are under attack.” There is clear authority.”
But the Kentucky Republican criticized the president for not deploying those powers more forcefully to attack America’s enemies.
“The commander-in-chief doesn’t like authority,” McConnell said.
He accused Biden of directing attacks against “low-value” targets and failing to “impose significant costs on Iran itself.”
“The commander-in-chief doesn’t like authority,” Senate Minority Leader Mitch McConnell said. (J. Scott Applewhite/Associated Press)
McConnell argued that President Thomas Jefferson was “not a big fan of muscular executives.” However, attacks on American shipping by Barbary pirates in the late 18th century encouraged the early United States to develop a navy to protect its interests.
“The core national interests served by the Barbary Pirates in the Mediterranean have created a consensus around the appropriate role of Article I and II departments in the war effort,” McConnell said. “Freedom of navigation has been a core national interest of the United States from the very beginning.”
That’s why McConnell believes the president has the power to directly retaliate without asking Congress to declare war.
Additionally, the War Powers Resolution of 1973 gives the president the authority to initiate military intervention, specifically on the fly or in response to a crisis, without seeking Congressional approval. However, the president must regularly report to Congress on his overseas activities.
Ironically, the War Powers Resolution was designed to give Congress a tool to take advantage of an overzealous commander-in-chief regarding the use of military forces overseas. Remember, this was the twilight of the Vietnam War. Ironically, presidents of both parties have long relied on the War Powers Resolution as a basis for justifying military action without Congressional obstruction.
That’s why a bipartisan coalition of Congressional representatives sent a letter to President Biden calling the attack “unauthorized.”
The War Powers Resolution of 1973 gave the president the authority to initiate military intervention without seeking Congressional approval. (Fox News Digital Image Direct)
“Congress must have a robust debate before American service members are put at risk and before more American tax dollars are spent on new wars in the Middle East,” the lawmakers wrote. “No president, regardless of party, has the constitutional authority to bypass Congress on matters of war.”
But presidents are increasingly relying on two AUMFs adopted more than 20 years ago to justify foreign engagement.
So was the AUMF, which was approved by Congress in 2001 after 9/11. This gave the United States the power to go virtually anywhere and wage the “war on terror.” In addition to the invasion of Afghanistan, American forces also fought in Asia and Africa under the aegis of the 2001 AUMF.
Congress adopted a second AUMF in the fall of 2002 to greenlight the 2003 Iraq War.
Last March, the Senate overwhelmingly voted to abolish the 2002 AUMF. Congress has long wanted to regain control over war powers. But the House never acted.
Sen. Mike Lee (R-Utah) said it’s unclear which AUMF the Biden administration is using these days.
Sen. Mike Lee said it’s unclear which AUMF the Biden administration is using these days. (Bill Clark/Getty Images)
“The 2001 and 2002 AUMF has been used as a Swiss Army knife in every conflict,” Lee said. “I think it’s important for the president to specify which AUMF or source of that authority he’s relying on based on his inherent authority under Article II to repel attacks.”
These questions are not along party lines. Some Republicans support presidential authority. Additionally, there are divisions among Democrats over support for Israel and concerns about human rights in Gaza and even Yemen. That’s a big factor in this discussion.
This may be why some on the left and right prefer that President Biden seek approval from Congress before ordering an attack.
Congress approved the Gulf of Tonkin Resolution to streamline military forces in response to the 1964 accident between the USS Maddox and a North Vietnamese torpedo boat. President Lyndon Johnson used the Gulf of Tonkin Resolution to justify escalating the Vietnam War. Less than a decade later, Congress approved the War Powers Resolution.
So we don’t know if the US is “at war” or not. And for the time being, it is unclear whether lawmakers intend to formally bless the stepped-up military operations or defer to the executive branch’s decision under Article 2 of the Constitution.
Congress can certainly assert itself in this dialogue through legislation.
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But lawmakers sometimes prefer to speculate and criticize from the sidelines. They transfer constitutional powers to the executive branch.
This makes it impossible to decipher whether the United States is in a “state of war.”
