Donald Trump's Yemen veto upends the Constitution

President Donald Trump’s recent veto of a congressional resolution about Yemen yielded a result contrary to what is intended by our constitutional order.

The Constitution designates the president as commander in chief. But the authority to declare war was vested in Congress.

Although the Federalist Papers do not elaborate on it at length, the intended division of labor is clear. Congress decides when to fight. The president decides how to fight.

In 1973, Congress passed the War Powers Act, which was designed to provide some operating latitude in this division of labor suitable to being a great power in a world full of potential exigencies.

To oversimplify, Congress gave advance approval to the president to initiate military action when thought needed to protect the national interest.

But Congress reserved a veto power over such initiatives. If Congress passed a resolution disapproving any particular military engagement, the president had to wind down and end it.

What happened with the Yemen resolution exposes a gaping flaw in this constitutional shortcut.

What's happening in Yemen is war

The United States is assisting Saudi Arabia with its military campaign in Yemen. We provide intelligence, including regarding bombing targets. And we have provided mid-flight refueling to Saudi bombers.

Some argue that this isn’t an act of war subject to congressional authorization. That it is within the president’s authority as commander in chief.

There’s an easy way to illustrate the fatuousness of this claim. Assume the same actions were targeted at the United States.

If some country was providing bombing targets within the United States to a hostile power, or refueling bombers on their way to drop them, would we regard that as an act of war? Of course we would.

While the practice of formally declaring war has fallen into desuetude, the constitutional principle remains: Congress, not the president, decides when we fight. And what we are doing in Yemen constitutes fighting.

Congress passed a resolution calling for an end to our military engagement in Yemen. But since such a resolution is an act of Congress, the president has veto authority with respect to it. Trump exercised that authority and there are not the votes in Congress to override it.

And so the president is engaging in military action opposed by a majority of Congress. The constitutional order has been upended. Rather than a majority of Congress being required to approve a military engagement before it takes place, under the War Powers Act it requires a two-thirds vote of Congress to bring one to a halt.

Trump buys GOP establishment consensus

Trump was supposed to be a fresh face on foreign policy, questioning the foreign policy consensus of the Republican establishment. In the Middle East, however, he has bought into the consensus view that constraining Iran should be the orienting principle of our involvement. And that means siding with Saudi Arabia and the other regional Sunni powers in their competition for geopolitical influence with Shiite Iran.

The U.S. has no direct strategic interests in Yemen. However, Iran and Saudi Arabia are fighting a proxy war there. And the United States is siding with the Saudis.

Ironically, the foremost advocate of making constraining Iran the orienting principle of U.S. foreign policy in the region was John McCain. Although Trump likes to disparage McCain, he is implementing McCain’s Middle East foreign policy, at least at the strategic level.

I’ve long disagreed with this perspective. The Saudis are no allies. And there is no reason for the United States to prefer Sunni despots to Shiite ones.

Biggs, Gosar offer a welcome dissent

Nevertheless, the Republican foreign policy consensus on the matter holds. The vote to put an end to the Yemen engagement was largely partisan.

Every Democrat in Congress voted for the resolution. Virtually all Republicans in Congress voted against it.

There were, however, some interesting deviations in the Arizona congressional delegation. In the House, there were only 16 Republican votes to stop the military engagement in Yemen. But three of the four GOP congressional representatives from Arizona voted to do so: Andy Biggs, Paul Gosar and David Schweikert. Only Debbie Lesko voted to continue the U.S. involvement in the Saudi war effort.

Whether the Arizona dissenters acted out of concern for the constitutional irregularity of the military engagement or a belief in its futility isn’t clear.

Regardless, the exercise of independent judgment is laudatory. And on matters of war and peace, what the founders intended from Congress.

Reach Robb at robert.robb@arizonarepublic.com.