Foreign Relations & International Law

Where Congress Stands on Yemen

Elizabeth Allan, Scott R. Anderson
Thursday, February 21, 2019, 8:00 AM

On Feb. 13, the House of Representatives passed H.J. Res. 37, a joint resolution that purports to direct the executive branch to end U.S. support for the Saudi-led military campaign against Houthi rebels in Yemen.

Saudi bombardments on Sana'a, Yemen. (Source: Wikimedia/Fahd Sadi)

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On Feb. 13, the House of Representatives passed H.J. Res. 37, a joint resolution that purports to direct the executive branch to end U.S. support for the Saudi-led military campaign against Houthi rebels in Yemen. This is the first major legislative action that either chamber has taken on the Yemen conflict in this Congress, and it may signal a renewal of the heated debate on the subject that took place in both the House and the Senate at the end of last year.

The Saudi-led military intervention in Yemen has come under criticism both for harming civilians through its military operations and for severely hampering the flow of goods and foreign assistance into the country, contributing to what many consider to be the world’s worst humanitarian crisis. While the humanitarian crisis in Yemen has been the subject of widespread bipartisan concern within Congress, there is disagreement on what steps the United States should take to address the situation. On one side, the vast majority of congressional Democrats and a number of Republicans, particularly in the Senate, have increasingly sought to directly pressure Saudi Arabia and its allies into adjusting their conduct by threatening to reduce the level of U.S. support being provided. On the other, the Trump administration and its supporters in Congress have resisted this approach, arguing that the Saudi-led coalition plays a vital role in combating Iranian influence in Yemen and that U.S. support reduces the risk that the Saudi-led military campaign will harm civilians. Late last year, this debate ultimately led several Senate Republicans—motivated in part by the Trump administration’s refusal to hold the Saudi government accountable for the murder of Saudi journalist Jamal Khashoggi—to join Senate Democrats in a historic vote that passed a joint resolution similar to H.J. Res. 37. But neither that nor any other Yemen-related measures were enacted into law before Congress adjourned.

Serious doubts remain about the political prospects for H.J. Res. 37 and other Yemen-related legislation, not to mention the legal effect they will have if enacted. But the fact that such measures are once again being debated may be a sign that the pressure to change U.S. policies in Yemen is once again building. And unlike last time, if the Trump administration does not change course, this effort may result in real legal restrictions on the policies that the administration may pursue.

The Yemen Resolutions

Both H.J. Res. 37 and its Senate counterpart, S.J. Res. 7, were introduced shortly after the 116th Congress convened in January 2019. They will look familiar to anyone who followed the debate on Yemen in the last Congress, as both are closely modeled on the joint resolution that the Senate ultimately passed in December. The main thrust of both resolutions is to direct the president to “remove [U.S. armed forces] from hostilities in or affecting the Republic of Yemen,” except for operations against al-Qaeda and associated forces. Other provisions disclaim any interpretations affecting cooperation with Israel, require certain reports, and—most important—define “hostilities” to include “in-flight refueling” of non-U.S. aircraft involved in missions as part of the ongoing civil war in Yemen.

Both H.J. Res. 37 and S.J. Res. 7 are designed to take advantage of certain special procedures that Congress added to the War Powers Resolution in 1983, which are now codified at 50 U.S.C. § 1546a. In the Senate, these procedures allow the sponsors of eligible resolutions to force votes and avoid filibusters and other obstructions, facilitating a debate even if congressional leadership or individual senators oppose the measure in question.

Reliance on § 1546a is new on the House side: the Yemen resolution that was introduced in the House in the last Congress relied on an older set of special procedures original to the War Powers Resolution, which allow for the use of concurrent resolutions and are codified at 50 U.S.C. § 1544(c) and 50 U.S.C. § 1546. These latter procedures, however, have been constitutionally suspect since the Supreme Court’s 1983 decision in INS v. Chadha, which found a similarly structured statutory provision to be unconstitutional because it did not provide the president with the opportunity to veto as required by the Presentment Clause. Shortly after Chadha, Congress enacted § 1546a as a constitutional alternative, using joint resolutions, which do provide the president with the opportunity to veto. Unlike with § 1544(c), however, Congress installed meaningful special procedures only on the Senate side. For this reason, in the last Congress, House Democrats relied on the special procedures for concurrent resolutions in § 1544(c) and § 1546 to force debate on the Yemen conflict over the objections of Republican House leadership, even though the resolution itself likely would not have legal effect even if enacted. Now that Democrats control the House again, these special procedures are not needed, so the House debated H.J. Res. 37 through normal procedures.

On Feb. 6, the House Committee on Foreign Affairs voted 25-17 along party lines to advance H.J. Res. 37 to the House floor. Debate took place on Feb. 13. The House considered and ultimately adopted two amendments. One by Rep. Ken Buck (R-Colo.) that was passed 252-177 installed a rule of construction that preserved the president’s ability to share intelligence information if he deems it to be in the U.S. national interest—an exception that opponents fear will allow the Trump administration to continue supporting the Saudi-led coalition even if H.J. Res. 37 becomes law. A second amendment by Rep. David Kustoff (R-Tenn.) that was passed 424-0 introduced a series of “findings” provisions asserting that it is in the U.S. national interest to combat anti-semitism and maintain a strong relationship with the state of Israel, an apparent response to the controversy surrounding Rep. Ilhan Omar (D-Minn.)’s comments on Israel earlier in the week. A third amendment that would have narrowed the definition of “hostilities” to those “directed at Houthi forces” was discussed but never brought to a vote. As amended, H.J. Res. 37 passed 248-177, with 18 Republicans in support.

From here, the action seems likely to shift to the Senate, where both H.J. Res. 37 and S.J. Res. 7 now sit with the Senate Committee on Foreign Relations. A majority of senators could vote to discharge it to the floor, proceed to consideration and ultimately adopt the resolution. This would require that the unanimous Democratic (and independent) senators be joined by at least four Republicans. That said, six of the seven Republican senators who ultimately voted for the joint resolution on Yemen in December—Susan Collins (R-Me.), Steve Daines (R-Mont.), Mike Lee (R-Ut.), Jerry Moran (R-Kan.), Rand Paul (R-Ky.) and Todd Young (R-Ind.)—remain in office. Thus far, these senators seem content to give the Trump administration some time to re-evaluate its policies and avoid a confrontation with the new committee chairman, Sen. James Risch (R-Id.), who has thus far proven less inclined to challenge the president than his predecessor. If push comes to shove, however, they may yet prove supportive of moving S.J. Res. 7 forward.

If the Senate passes S.J. Res. 7 or amends H.J. Res. 37 before passing it, then the resulting joint resolution will need to be reconciled with H.J. Res. 37 as passed by the House and the final version adopted by both chambers. At this point—or if the Senate just passes the current version of H.J. Res. 37 outright—it would be presented to the president, who has already made clear that he intends to veto. Overriding his veto would require two-thirds of both the House and the Senate, a higher level of support than any Yemen-related measures have received in either chamber to date.

Moreover, there is some doubt as to what legal effect the joint resolution would have even if enacted. The Defense Department has repeatedly (and to some extent credibly) argued that the activities that the United States is pursuing in support of the Saudi-led coalition in Yemen—the provision of defense articles and services, certain intelligence support, and military advice—do not constitute “hostilities” as the term is used in the War Powers Resolution, meaning that the joint resolution would have no legal effect. And while Congress may in theory be able to amend the definition of “hostilities” in the joint resolution to encompass those activities, doing so too aggressively may trigger a procedural fight as to whether the resulting joint resolution is still eligible for the special procedures provided by § 1546a. Some members of Congress could also raise objections that these procedures are being abused—a possibility that Rep. Michael McCaul (R-Tex.), the ranking member on the House foreign affairs committee, raised explicitly in his dissent to the House report on H.J. Res. 37.

For these reasons, it remains unlikely that the joint resolution will become law or have a meaningful legal effect if it does. The debate over these measures, however, may still be an important means of forcing a public confrontation between the Trump administration and Congress, including members of the president’s own party. This will only underscore the unpopularity of the president’s policies and may bring with it substantial political costs, factors that will place additional pressure on the administration to change its approach.

Other Legislation

H.J. Res. 37 and S.J. Res. 7 are not the only Yemen-related legislation currently under consideration. At least two other bills have been introduced in the House and the Senate, though both are currently still with relevant committees.

The first is the Saudi Arabia Accountability and Yemen Act of 2019 (or S. 398), which was introduced by Sen. Robert Menendez (D-N.J.) and is co-sponsored by a bipartisan group of senators. Based on a similar bill in the last Congress, S. 398—in addition to imposing a number of reporting requirements—would set certain limits on support for the Saudi-led coalition in Yemen, including the suspension of certain categories of arms sales, until there is substantial progress toward a resolution of the conflict, along with an outright prohibition on in-flight refueling of Saudi coalition aircraft until the costs of previously provided in-flight refueling services are reimbursed. The bill would also impose sanctions on persons either hindering humanitarian access to Yemen or supporting the Houthis there and would install certain emergency protections for Yemeni cultural property. Separately, S. 398 would also impose sanctions on anyone found to be complicit in the murder of Saudi journalist Jamal Khashoggi and would require a report on Saudi Arabia’s broader human rights practices, two issues that have become intertwined with debates over the Yemen conflict. At present, S. 398 is with the Senate foreign relations committee.

The second piece of legislation is the Yemen Refueling Prohibition Act (or H.R. 910) introduced by Rep. Ted Lieu (D-Ca.). Like the other proposed legislation discussed above, H.R. 910 would prohibit the use of federal funds to provide in-flight refueling to aircraft involved in “the ongoing coalition intervention in Yemen,” effectively codifying the Trump administration’s recent decision to end this form of support. This bill was referred to the House foreign relations and armed services committees, where it presently remains.

By setting direct limits on the Trump administration—and avoiding any link to disputed terms such as “hostilities”—both S. 398 and H.R. 910 would have far more certain legal effects than H.J. Res. 37 and S.J. Res. 7 if enacted. But both face substantially more difficult paths to becoming law. Neither is eligible for § 1546a procedures nor any other special procedures, meaning they must go through the normal legislative process. As such, there are numerous ways that opponents of the legislation—particularly relevant committee chairs and the majority leader in the Senate—may prevent the bills from coming up for debate. Moreover, even if the House and the Senate passed these bills, they would still be subject to a likely presidential veto—and it seems unlikely that either could secure the two-thirds support necessary for Congress to override the veto.

Future Opportunities

Not all legislation, however, is so easy for the president to veto. Each year, Congress enacts omnibus legislation that bundles together various provisions into packages. These bills often include “must-pass” legislation that directly affects certain key federal functions or activities and is thus highly valued by the president. The classic example is the annual National Defense Authorization Act (NDAA) process, which Congress engages in each year to authorize salaries for armed service members as well as a range of military activities. Presidents are often reluctant to veto NDAAs, which can make the legislation popular vehicles for defense-related provisions that restrain or are otherwise disfavored by the president.

Congress has used the last two NDAAs for precisely this purpose when it comes to Yemen. The NDAA for fiscal 2018 obligated the executive branch to submit a report on the conduct and ramifications of the Saudi-led military campaign in Yemen as well as a strategy on Yemen for the United States. Congress ultimately omitted a provision in the original House version that would have prohibited the use of Defense Department funds for certain activities in Yemen, but included wording in the associated joint explanatory report noting Congress’s concern and discouraging the United States from entering the conflict there as a co-belligerent. The subsequent 2019 NDAA went even further by directing the Defense Department to conduct a review of U.S. support for the Saudi-led coalition and their involvement in possible legal violations. More important, Section 1290 threatened to withhold funding for in-air refueling services unless the secretary of state could certify that certain conditions had been met—namely, that Saudi Arabia had undertaken an “urgent and good faith” effort to negotiate an end to the conflict, acted to alleviate humanitarian suffering and reduced the harm to civilians resulting from military operations—or issued a waiver claiming that these activities were in the U.S. national interest and explaining why he could not issue the certification. And while Trump objected to both provisions in his signing statement, he did not veto the NDAA over them.

What happened next, however, underscores both the limits and the potential of these sorts of provisions. Secretary of State Mike Pompeo initially issued the required certification in September 2018, despite bipartisan skepticism that Saudi Arabia had actually satisfied the relevant requirements. The Wall Street Journal later reported that Pompeo had acted against the almost unanimous recommendation of his State Department staff, who had urged him to issue a waiver instead. This contributed to growing congressional frustration with the Trump administration’s policy toward Saudi Arabia and the Yemen conflict, ultimately leading the Trump administration to voluntarily cease providing the Saudi-led coalition with in-air refueling. As a result, the Trump administration has refused to issue another certification or waiver under Section 1290 despite bipartisan requests, on the apparent logic that Section 1290 no longer imposes any meaningful penalties for doing so.

If Congress wishes to put concrete legal restrictions on the executive branch’s actions in Yemen, the next NDAA—which will be drafted over the coming year and brought to a vote sometime in the fall—is the most likely vehicle. Presidential allies in the House and the Senate may seek to limit or avoid these provisions, but Democratic control of the House, combined with Republican reservations about Yemen policy in the Senate, make this a realistic possibility. The restrictions proposed in S. 398 are a likely model for such restrictions, though other formulations are also possible. And while the experience with Section 1290 underscores just how willing the Trump administration is to put its credibility on the line to preserve its close relationship with Saudi Arabia, Congress can make the requisite certifications and waivers narrower and more difficult to circumvent—or just remove them altogether in favor of hard legal restrictions, such as prohibitions on the types of support the United States is currently providing.

This does not, however, mean that these proposals are meaningless. Debating and negotiating these bills will help assemble the political coalitions that will be needed to enact more effective provisions later, and build the necessary political pressure to hold those coalitions together. Perhaps as important, they will also impose additional political costs on the Trump administration and underscore just how real the threat of meaningful congressional action has become—factors that may ultimately lead the administration to adjust problematic aspects of its Yemen policy before Congress forces it to do so.

Elizabeth Allan is a first-year student at Yale Law School. She holds Bachelor’s degrees in International Affairs and Arabic from the University of Georgia and an MPhil in Modern Middle Eastern Studies from the University of Oxford, where she studied as a Rhodes Scholar. She has also worked as a consultant in the Middle East and West Africa.
Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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