U.S. Strikes on Houthi Targets in Yemen Raise War Powers Issues

U.S. Strikes on Houthi Targets in Yemen Raise War Powers Issues

INSIGHTi

U.S. Strikes on Houthi Targets in Yemen Raise
War Powers Issues
February 9, 2024
Following attacks from Houthi-controlled areas of northern Yemen on shipping vessels and U.S. and
allied naval forces in the Red Sea since November 2023, U.S. armed forces in the region have struck
Houthi targets in Yemen on several occasions, beginning January 11, 2024. Some Members of Congress
have questioned the President’s authority to take such action and asserted Congress’s constitutional role in
such decisions, while others have supported the President’s decision. The War Powers Resolution (WPR;
P.L. 93-148; 50 U.S.C. §§ 1541-1548) contains provisions designed to guide Congress to address
presidential use of U.S. armed forces, requiring the President to inform Congress of certain deployments
and providing a roadmap for congressional authorization or disapproval of unilateral presidential action.
Presidential Reporting Under the War Powers Resolution
The WPR creates a process for presidential consultation with and notification to Congress concerning
decisions to use U.S. armed forces. Pursuant to Section 4, the President must notify the Speaker of the
House and the President pro tempore of the Senate within 48 hours after “United States Armed Forces are
introduced” into active or imminent hostilities, or otherwise into a foreign nation while equipped for
combat. The notification must describe the “circumstances necessitating” the introduction, the “estimated
scope and duration of the hostilities or involvement,” and the “constitutional and legislative authority” for
the decision. The President is required to “provide such other information as the Congress may request”
in connection with a notification.
President Biden has provided multiple WPR notifications, beginning January 12, 2024, regarding the
strikes in Yemen, stating they were intended to deter and degrade future Houthi attacks against U.S. forces
and commercial vessels in the Red Sea. The President asserted that his authority under Article II of the
Constitution permitted the military action. The notifications characterized the strikes as “discrete” and
indicated the President would order additional strikes “as necessary … to address further threats or
attacks.” U.S. armed forces had used military force previously in response to Houthi attacks, but no
publicly available WPR notification seemingly addresses these incidents.
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“Hostilities” Under the WPR
The WPR contains provisions circumscribing the President’s authority to introduce U.S. armed forces into
“hostilities.” While the executive branch might at times seek to foreclose congressional findings of
hostilities, the WPR seems to seek the involvement of Congress in determining whether hostilities exist,
to “insure that the collective judgment of both the Congress and the President will apply.”
The term “hostilities” is not defined in the WPR. According to executive branch interpretation, the term
applies only to active exchanges of fire between U.S. and “opposing units of hostile forces.” The House
report accompanying the proposed WPR, however, states it also “encompasses a state of confrontation in
which no shots have been fired but where there is a clear and present danger of armed conflict.” Such
hostilities are “imminent” when “there is a clear potential either for such a state of confrontation or for
actual armed conflict.”
In the current situation concerning the Houthis, determining “hostilities” might depend on interpretation
of the term as well as the breadth of information considered. If hostilities exist only when active
exchanges of fire are occurring, it could be argued that hostilities end after each round of counter-Houthi
strikes. It could also be argued that hostilities have existed during the overall period when uses of force
have occurred intermittently in the context of an ongoing state of confrontation between U.S. and Houthi
forces, which extend back to at least October 2023 and are ongoing.
Presidential Authority to Conduct Hostilities
In the January 12 notification, the President, in line with previous executive-branch interpretation,
asserted Article II authority to use military force to protect U.S. personnel, citizens, and national interests.
According to the WPR, the President’s exclusive constitutional powers to introduce U.S. armed forces
into hostilities are limited to defense of the United States and its armed forces against an armed attack
creating a “national emergency,” and continuing hostilities must be backed by congressional
authorization. It is uncertain in this situation whether the President’s assertion of inherent constitutional
authority for using military force absent legislative authority comports with the WPR.
The President has also asserted that his actions were in part authorized to defend U.S. forces. It could be
argued previous presidential decisions to deploy U.S. armed forces into areas of ongoing conflict, with
Houthi and other forces in the Red Sea and in the wider Middle East region, created the conditions
requiring such forces to defend themselves. The WPR seems to require the President to submit to
Congress for approval or disapproval those deployments of U.S. armed forces resulting in hostilities,
whether such hostilities are offensive or defensive in nature.
Possible Employment of WPR Measures
Whether Congress chooses to legislate to authorize or terminate U.S. military action against Houthi
forces, the WPR requires timely and substantive presidential reporting to inform that choice. While the
President has provided relevant notifications, the contents address a fraction of related U.S. military uses
of force and operations. It could be argued that the justifications for military action in the notification
contradict the WPR, potentially complicating Congress’s consideration of whether such “use of United
States Armed Forces with respect to which such report was submitted” should continue. Some Members
might request further information from the Administration concerning the military situation in the Red
Sea (and possibly the wider Middle East) that directly addresses war powers authorities as set out in the
WPR.
If Congress finds that U.S. forces are engaged in ongoing unauthorized hostilities with Houthi forces, the
WPR and related legislation provide expedited consideration procedures either to authorize, or require
termination of, such hostilities. If Congress does not adopt either type of measure within 60 days, the

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President must terminate the unauthorized use of U.S. forces related to the notification. According to the
WPR’s provisions, this 60-day period is not a grant of authority to conduct hostilities, but instead serves
as a window for Congress to decide whether to cure the President’s unauthorized use of the military.

Author Information

Matthew C. Weed

Specialist in Foreign Policy Legislation

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