Where Trump’s veto leaves the Yemen resolution

A man searches in the rubble of a house destroyed by an air strike in Amran, Yemen June 25, 2018. REUTERS/Khaled Abdullah - RC1C1F459690
Editor's note:

If the congressional debate over Yemen has accomplished anything, writes Scott Anderson, it has made clear just how unpopular Trump’s Yemen policies are even among members of his own party. While his veto authority may allow Trump to avoid any legal restrictions, employing it comes with a political cost. This piece originally appeared in Lawfare.

Late in the evening on April 16, President Trump informed the Senate that he was officially vetoing S.J. Res. 7, the joint resolution that many hoped would bring an end to U.S. support for the Saudi-led military intervention against Houthi rebels in Yemen. Trump’s veto almost certainly means that S.J. Res. 7 will never be enacted into law. But it sets the stage for the next fight over U.S. involvement in Yemen’s civil war. And the statement Trump issued explaining his decision provides some clues on how it might be fought.

S.J. Res. 7 is the result of a multi-year debate in Congress, made possible by “priorityprocedures” put in place by the War Powers Resolution that allow legislators to force floor debates and votes on measures that seek to remove U.S. military personnel from “hostilities” overseas. Motivated by both the Yemen conflict and the Trump administration’s failure to hold the Saudi government accountable for the murder of journalist Jamal Khashoggi, the Senate finally approved one such measure in December 2018—only for it to be rendered moot days later when the 115th Congress adjourned. Members of the new Congress, however, soon introduced identical joint resolutions in both the Senate and the (now Democratically-controlled) House. Early in 2019, both chambers approved the Senate version, S.J. Res. 7, with every Democrat and independent voting in support alongside 16 Republicans in the House and seven Republicans in the Senate.

As passed, S.J. Res. 7 “directs the President to remove [U.S. armed forces] from hostilities in or affecting the Republic of Yemen,” except those targeting al-Qaeda, within 30 days, “unless and until a declaration of war or specific authorization for such use . . . has been enacted.” It defines “hostilities” to include “in-flight refueling of non-[U.S.] aircraft conducting missions as part of the ongoing civil war in Yemen[.]” Yet it also contains carve-outs for certain intelligence-related activities and military cooperation with Israel, allowing both to continue in at least certain circumstances.

Trump had repeatedly promised to veto the joint resolution as it moved through Congress. But as time passed after the final vote without presidential action, some observers began to speculate that the mercurial president was changing his views and embracing a military wind-down in Yemen, as he had done in Afghanistan and Syria. In fact, Congress appears to have been the cause of the delay, as it waited almost two weeks to formally transmit S.J. Res. 7 to the president. Trump ultimately vetoed the measure the same day he received it, as promised.

Trump’s veto statement casts S.J. Res. 7 in a harsh light, decrying it as “an unnecessary, dangerous attempt to weaken [the president’s] constitutional authorities.” Most of the statement focuses on the Trump administration’s long-standing argument that S.J. Res. 7’s reference to “hostilities,” a term of art taken directly from the War Powers Resolution, does not cover the “limited support” the United States is providing the Saudi-led coalition. As Trump describes, this support “includ[es] intelligence sharing, logistics support, and, until recently, in-flight refueling of non-United States aircraft” that the United States is providing “consistent with applicable Arms Export Control Act authorities, statutory authorities that permit the Department of Defense to provide logistics support to foreign countries, and the President’s constitutional power as Commander in Chief.” As a result, according to the Trump administration, S.J. Res. 7’s directive has no bearing on these activities and Congress’s efforts would be better directed elsewhere—specifically, Trump suggests, confirming his diplomatic nominees and supporting the military drawdowns he is pursuing in Afghanistan and Syria.

Other portions of Trump’s statement hint at new, broader legal arguments that the Trump administration may be considering. Specifically, Trump asserts that U.S. involvement in the Yemen conflict is “first and foremost” motivated by “our duty to protect the safety of the more than 80,000 Americans who reside in certain coalition countries that have been subject to Houthi attacks from Yemen.” Only secondarily does he mention the need to counter Iranian efforts at “caus[ing] trouble” in the region, an argument that has featured more centrally in prior justifications of U.S. policy. This shift is notable, as the executive branch has repeatedly argued that the president has the inherent constitutional authority to use military force overseas in defense of U.S. nationals and personnel absent express congressional authorization—including in Somalia in 1992Haiti in 2004, and Iraq in 2014.

The fact that the Trump administration has chosen to emphasize this argument does not necessarily mean that it is preparing to engage directly in military operations against Houthi targets in Yemen, a step it has thus far avoided. But it is a likely sign that lawyers there have begun to think about where the affirmative legal authority for such actions might lie, particularly if Congress were to limit or remove relevant statutory authorities. Of course, prior executive branch legal opinions only clearly assert that this authority exists “at least insofar as Congress has not specifically restricted it,” leaving open the question of whether Congress can prohibit such actions by statute, as S.J. Res. 7 attempts to do.

Other parts of Trump’s veto statement, however, may push even further. He also objects to S.J. Res. 7’s “dangerous” efforts to “prohibit certain tactical operations, such as in-flight refueling, or require military engagements to adhere to arbitrary timelines,” on the grounds that “[d]oing so would interfere with the President’s constitutional authority as Commander in Chief of the Armed Forces[.]” Caveats that statutory provisions “could” infringe on the president’s constitutional authority are not uncommon in executive branch comments on statutes: they essentially preserve the argument in the event that circumstances triggering such concerns, however unlikely, may arise.  But asserting that such restrictions “would” necessarily interfere with the president’s constitutional authority, no matter the circumstances, implies a more aggressive potential argument—namely, that such actions are inherently within the president’s exclusive constitutional authority, and thus not subject to any statutory restrictions Congress might seek to impose.

The president’s decision to specifically reference “in-flight refueling” in this context is particularly revealing. As mentioned above, S.J. Res. 7 explicitly includes “in-flight refueling of non-United States aircraft” within the definition of “hostilities” from which it is directing the removal of U.S. armed forces, leaving few reasons to doubt that it would be statutorily prohibited if S.J. Res. 7 were enacted. In addition, Congress has already put certain preconditions on providing in-flight refueling services to the Saudi-led coalition, and the Trump administration ceased providing those services in November 2018 as a result. Referencing in-flight refueling therefore implies that the Trump administration views existing conditions as unconstitutionally restrictive, despite its compliance. It also implies that any restrictions imposed by Congress through S.J. Res. 7 or other legislation “would” impinge on the president’s constitutional authority. This in turn implies a very broad view of what “tactical operations” are within the president’s exclusive constitutional authority to pursue.

Of course, trying to infer legal arguments from such statements is a risky enterprise. Prior Trump administration statements—with one poorly drafted exception—have not gone quite so far, limiting themselves to assertions that S.J. Res. 7 and similar statutes “would raise serious constitutional concerns to the extent [they] seek to override the President’s determination[s] as Commander in Chief.” Trump’s veto statement may simply reflect an imperfect effort to adapt this prior language to a new context. Or it may reflect a subtle shift to a more aggressive legal posture.

Either way, the answer could have significant ramifications for the future fight over U.S. involvement in Yemen. Trump’s veto almost certainly means the effective end of the road for S.J. Res. 7. Both the House and the Senate will no doubt debate and vote on an override, but S.J. Res. 7 does not appear to have the two-thirds support necessary in either chamber to succeed. But there other legislative avenues that Congress may yet pursue if it wishes to set legal restrictions on U.S. activities in Yemen, some of which may be vulnerable to the possibility of a presidential veto.

For national security-related issues, the most common such vehicle is the annual National Defense Authorization Act (NDAA). Used to authorize salaries for military personnel, the procurement of military equipment, and other must-haves, NDAAs are often difficult (but not impossible) for presidents to veto. This may be particularly true for Trump, who has highlighted his support for prior NDAAs as a sign of his commitment to U.S. soldiers and may try to use the forthcoming 2020 NDAA to secure funding for the U.S.-Mexico border wall he wishes to build.

Congressional opponents of current U.S. policies towards Yemen are almost certain to try and insert relevant legal restrictions into the 2020 NDAA, most likely modeled on existing proposals. Whether this effort succeeds will depend on the politics around and among the House and Senate armed services committees that run the NDAA process. That said, there is some precedent for success: the conditions on in-flight refueling that appear to have led the Trump administration to cease that activity were enacted as part of the last NDAA. And the fact that a bipartisan majority in Congress has already supported S.J. Res. 7 may well tip the scales further in support of such restrictions.

Enacting clear statutory restrictions on U.S. activities in Yemen will bring the Trump administration’s views on the scope of the president’s exclusive constitutional authority back to the fore. Even if it views those restrictions as unconstitutional, the Trump administration may choose to comply without conceding that it is legally obligated to do so, preserving its legal position (and policy flexibility) without initiating an inter-branch dispute. Or it may refuse to comply, setting the stage for a potential legal challenge that would raise novel and important constitutional questions. And despite their historical reticence, the federal courts might feel compelled to take those questions up. The future of U.S. involvement in Yemen may well hang in the balance, at least until the end of the current administration.

Of course, this assumes that Trump will stay his present course. But if the congressional debate over Yemen has accomplished anything, it has made clear just how unpopular Trump’s Yemen policies are even among members of his own party. While his veto authority may allow Trump to avoid any legal restrictions, employing it comes with a political cost—one that will only grow as Congress continues to demonstrate its bipartisan opposition to his policies through additional legislative measures. At some point, even President Trump may determine that these political costs—combined, perhaps, with the imminent possibility of Congress eventually forcing his hand through binding legal restrictions—are too much to sustain.