An Illegal and Unwise Incursion

International law rightly recognizes the sovereignty of nations. The United Nations Charter, which the U.S. signed in 1945, prohibits countries from using or threatening force against the territorial integrity or political independence of any nation. The invasion of Venezuela cannot be justified under any principle of international law. It obviously was not in response to hostilities by that country against the U.S., and Venezuela poses no threat to American national security.

The United States has rightly condemned the Russian invasion of Ukraine as a violation of international law. From a legal perspective, last week’s military action in Venezuela to remove Maduro is no different. It cannot be that the only thing stopping a foreign aggressor from coming into the U.S. to capture its president and to run this country is that we have better protection for the occupants of the White House. Ignoring international law in this regard risks serious consequences. Many believe that it will embolden China in its aspiration to take over Taiwan. 

The military operation in Venezuela, carried out without any semblance of congressional approval, violates the Constitution and a federal statute, the 1973 War Powers Resolution. In fact, Susie Wiles, Trump’s chief of staff, said in a November interview that if Trump “were to authorize some activity on land, then it’s war, then [we’d need] Congress.” Around the same time, Secretary of State Marco Rubio and Defense Secretary Pete Hegseth, in a briefing to members of Congress, reportedly said the same thing.

The framers of the Constitution were deeply distrustful of executive power. Their experience under the rule of the king of England caused them to see presidential power as a necessary evil that had to be checked. Under the Articles of Confederation, which preceded the Constitution, the president served a one-year term and had little authority.

Although the Constitution created a stronger presidency, it did so with a firm commitment to checks and balances. It emphatically rejected giving the president power to act without the involvement of another branch of government. As James Madison famously wrote in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The Constitution created an elegant structure intended to require the involvement of two branches of government in any major action by the federal government. Enacting a law requires the input of Congress and the president. Enforcing a law necessitates a prosecution by the executive branch and a conviction by the courts. Appointing ambassadors or Supreme Court justices requires nomination by the president and confirmation by the Senate. A treaty is negotiated by the president, but effective only if ratified by the Senate. 

War powers, too, were divided between Congress and the president. Congress has the power to declare wars while the president has the authority to prosecute them as commander in chief. Although there has long been debate over the power of the president to use troops without congressional approval, the Constitution created a system in which both branches of government must be involved before the United States goes to war.

Of course, there can be emergencies, such as an attack on the United States, in which it is impossible for Congress to be consulted or involved before troops are deployed. But no one realistically can argue that there was an emergency that required the invasion of Venezuela without congressional involvement.

In 1973, in response to the ongoing Vietnam War, Congress passed the War Powers Resolution, a federal statute to ensure that it is involved in war-making decisions. This law was meant to fulfill the Constitution’s commitment to checks and balances in the exercise of military force in foreign countries. The resolution requires that the president consult with Congress “in every possible instance” before introducing armed forces into hostilities. This was obviously violated by the invasion of Venezuela; there is no indication of any consultation with Congress. 

The Constitution and the War Powers Resolution embody the basic principle that the president should not be able to unilaterally involve the United States in a war. Invading another country is a quintessential act of war. Consulting with and receiving approval from Congress requires that a president explain and justify his military actions. This latest attack underscores the importance of this congressional check, as it remains unclear why the U.S. has bombed ships off Venezuela’s coast, captured its president, and declared itself to be “in charge” of the country.

President Trump has said that the operation was carried out to combat “narco-terrorists.” But this is not a credible claim. Venezuela is a minor producer of drugs that come into the United States. Nor can this rationale be reconciled with Trump’s recent pardon of former Honduran President Juan Orlando Hernández, who ran a major drug operation and was convicted in federal court. 

Perhaps this is about, as Trump also has suggested, gaining control of Venezuela’s vast oil fields. If so, Congress should have been involved in deciding whether to engage in such a blatant violation of international law as to invade a nation to gain control over its resources.

Maduro was a brutal dictator. But that is not a legal basis for military action to take over another nation.

To be sure, the invasion of Venezuela is not the first military action taken by a president without congressional approval. Over the course of American history, and particularly since World War II, there have been several instances of presidents deploying troops without any semblance of congressional authority. For example, in 1958, President Dwight D. Eisenhower sent troops to Lebanon to protect American economic interests. In 1965, President Lyndon Johnson used the military in the Dominican Republic to safeguard Americans there. In 1983, President Ronald Reagan used the military in Grenada to protect American students and to establish a new government. In 1989, President George H.W. Bush invaded Panama to depose and detain its de facto ruler, Gen. Manuel Noriega, who was wanted by United States authorities for racketeering and drug trafficking. In March 2011, President Barack Obama authorized the bombing of Libya.

But none of these past infringements make the invasion of Venezuela legal under international law, the United States Constitution, or the War Powers Resolution. To the contrary, it shows how far the U.S. has departed from the vision of both the U.N. Charter and the wisdom of the framers. We truly have given the president the unchecked authority that James Madison described as the very definition of tyranny.

Now, it is imperative that Congress reassert its constitutional powers. The consequences of President Trump’s attack on Venezuela are potentially enormous. It could well involve a long-term involvement in Venezuela at great costs; occupying another nation rarely goes well. It could be a precursor to unwarranted aggression against other countries. Indeed, Trump has already threatened this possibility.

Lawmakers must immediately hold oversight hearings to learn why we invaded Venezuela and what the plans are for the country now. Congress controls the purse and must decide how federal money can be spent. And Congress must reassert its constitutional authority to be involved in war-making decisions. 

In the same interview where Susie Wiles said that attacking Venezuela would require congressional approval, she also remarked that Trump believes “there’s nothing he can’t do, nothing, zero.” This just can’t be right in a constitutional democracy based on checks and balances. The invasion of Venezuela was inconsistent with the most basic principles of both international and American law. It must be condemned and action must be taken to ensure it is not the precursor to further illegal military actions by President Trump.