The U.S. could be at war right now.
We don’t know for sure, because Congress hasn’t "declared war."
Organizations linked to Iran killed three U.S. service members in Jordan over the weekend.
The U.S. fired strikes in Iraq on "facilities used by" the Iranian-backed Kataib Hezbollah militia groups and other Iran-affiliated groups last week. The U.S. now regularly launches attacks on the Houthis.
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The Houthis are rebels based in Yemen fighting against the influence of the U.S., Israel and Saudi Arabia on the Arabian Peninsula. There is a proxy fight in Yemen between Iran and Saudi Arabia. The Houthis back the Palestinians and are opposed to Israel in the war now raging in Gaza. Since the U.S. and western nations support Israel, the Houthis have attempted to disrupt shipping in the Red Sea by attacking commercial vessels.
The United Nations Security Council adopted a resolution demanding the Houthis cease their onslaught against ships sailing through the Red Sea, but that hasn’t halted the attacks. That’s why the U.S. is retaliating.
This is why the U.S. lost two SEALs in the Gulf of Aden last week. The SEALs died during a mission using special speedboats. The SEALs attempted to climb aboard a rudimentary cargo ship in the Arabian Sea. One fell off a ladder in rough seas. Another jumped in to find the other. Both SEALs perished.
So here you have the U.S. firing missiles and actually losing American service members in overseas military operations, neither of which has happened in the nearly two years that Ukraine has been at war with Russia. You have Iranian loyalists killing American service personnel in Jordan. So where does that leave the U.S. militarily, politically and constitutionally when it comes to war – or whatever the U.S. is engaged in right now?
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"I don’t know what else you’d call it," said Sen. Tommy Tuberville, R-Ala. "They’re shooting us. We’re shooting at them. I guess you could call it war."
But if that’s the case, who approved this war?
Article I, Section 8 of the Constitution says Congress has the power "to declare war."
Article II, Section 2 of the Constitution grants the president power as "Commander in Chief."
This schism blurs who’s really in charge here and whether the U.S. is actually involved in hostilities. Or for that matter, whether it is "at war." This weekend’s attack, the loss of the SEALs and the prolonged shooting match with the Houthis makes for a case study.
This is why a bipartisan coalition of senators wrote to President Biden, asking for specifics about the "self-defense" context of the strikes against the Houthis and "on what date were U.S. forces ‘introduced into hostilities’ in Yemen and the Red Sea?"
It’s certainly within the power of the commander in chief to order retaliation if the U.S. is attacked or even dial up an incursion to prevent future incidents. But lawmakers demand explanations for the legal justifications the administration is using to execute military operations overseas – without a direct congressional blessing under Article I, Section 8 of the Constitution.
President Biden promises action. Sens. Tom Cotton, R-Ark., and Lindsey Graham, R-S.C., both suggested the U.S. quit nibbling around the edges of Iran and hit Iran on its home turf. Surely a strike inside a sovereign nation would constitute "war."
Yet no one has suggested that Congress "declare war" or draw up an Authorization for Use of Military Force (AUMF). Yet. But that push could come if this becomes a protracted engagement with the Houthis and those who are in cahoots with Iran.
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Before this past weekend’s deaths, Senate Minority Leader Mitch McConnell, R-Ky., asserted that President Biden "has clear authority to use military force when American lives and interests are under attack."
But the Kentucky Republican criticized the president for not deploying those powers with greater force to attack America’s enemies.
"The commander in chief does not like authority," said McConnell.
He accused Biden of directing strikes against "low value" targets and failing "to impose meaningful costs on Iran itself."
McConnell argued that President Thomas Jefferson "was hardly an enthusiastic proponent of a muscular executive." But attacks on U.S. vessels by Barbary pirates in the late 18th century encouraged the incipient United States to develop a Navy to protect its interests aboard.
"Core national interest posed by the Barbary pirates in the Mediterranean forged a consensus around the appropriate roles of the Article I and Article II branches in the conduct of war," said McConnell. "Freedom of navigation has been a core national interest of the United States from the very, very beginning."
That’s why McConnell believes the president has the authority to retaliate directly, without engaging Congress for a declaration of war.
Moreover, the War Powers Resolution of 1973 grants presidents the power to initiate military intervention – especially on the fly or responding to a crisis – without seeking a congressional blessing. However, the president must regularly update Congress on activities overseas.
Ironically, the War Powers Resolution was designed to give Congress a tool to harness an overzealous commander in chief when it comes to the use of the military abroad. Remember, this was in the twilight of the war in Vietnam. Ironically, presidents of both parties have long relied on the War Powers Resolution as a crutch to justify military action – without congressional hindrances.
This is why a bipartisan coalition of House members wrote to President Biden, calling the strikes "unauthorized."
"Congress must engage in robust debate before American service members are put in harm’s way and before more U.S. taxpayer dollars are spent on yet another war in the Middle East," wrote the lawmakers. "No president, regardless of political party, has the constitutional authority to bypass Congress on matters of war."
However, presidents have increasingly leaned on two AUMFs adopted more than two decades ago to legitimize overseas engagements.
Such was the case with the AUMF approved by Congress in 2001 after 9/11. That gave the U.S. authority to go virtually anywhere to wage "the war on terror." In addition to invading Afghanistan, American forces have 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 war in Iraq.
The Senate voted overwhelmingly in March of last year to repeal the 2002 AUMF. Congress has long wanted to reclaim its authority over war powers. But the House never acted.
Sen. Mike Lee, R-Utah, said it’s unclear which AUMF the Biden administration is utilizing these days.
"The ’01 and ’02 AUMFs have been used as the Swiss Army knife for every conflict out there," said Lee. "I do think it’s important for the president to specify which of those AUMFs or the source of their authority they’re relying on under their inherent authority under Article II to repel an attack."
These questions don’t fall along party lines. Some Republicans support the president’s authorities. Others want to rein him in. In addition, there is a schism among Democrats over supporting Israel versus concerns about human rights in Gaza – and even Yemen. That is a big factor in this debate.
This is why some on the left – and right – might prefer that President Biden ask Congress for an authorization before ordering the strikes.
Congress approved the Gulf of Tonkin Resolution to rationalize military force in response to an incident between the USS Maddox and North Vietnamese torpedo boats in 1964. President Lyndon Johnson used the Gulf of Tonkin Resolution to justify an escalation of the war in Vietnam. That, in turn, prompted Congress to approve the War Powers Resolution less than a decade later.
So, we don’t know if the U.S. is "at war." And for the time being, it’s unclear if lawmakers are willing to go so far as to formally bless an intensification of military operations – or defer to the executive under Article II of the Constitution.
Congress can certainly assert itself into this conversation via legislation.
But sometimes lawmakers prefer to second guess and carp from the sidelines. They cede their constitutional authorities to the executive.
And that makes it impossible to decipher whether the U.S. is "at war" or not.
