The Long Legal Precedent for Trump’s Venezuela Operation

President Trump’s academic critics do not deny that presidents have long used military force without prior congressional authorization. They argue instead that this historical practice reflects a breakdown of checks and balances—one that Congress and the courts must now correct. But bipartisan practice sustained over two centuries is not constitutional drift; it is the Constitution operating as designed.

As a threshold matter, many academic critics claim that the president’s removal of Maduro was “clearly illegal” under international law. But such claims carry zero weight. The U.N. Charter’s restrictions on the use of force have never functioned as binding legal constraints on presidential decision-making. International law lacks a sovereign authority, a court with compulsory jurisdiction, and reliable enforcement mechanisms for violations. Nations routinely ignore the U.N. Charter’s restrictions when it suits their interests: The Soviet Union invaded Afghanistan; the United States invaded Grenada and Panama; Britain, France, and Israel invaded Egypt. The Security Council, paralyzed by the veto power of its permanent members, has rarely acted to stop aggression. A rule consistently violated with minimal consequences and without a consistent enforcement mechanism provides no serious basis for defining the scope of presidential power under the U.S. Constitution. Academic critics often treat international law as a binding constraint on presidential power. The Constitution does not.

Those same critics advance a parallel constitutional argument, but it fares no better. They do get one thing right, however: The United States is at war with Venezuela, both under domestic and international law. I have raised doubts about whether the United States can wage war against drug traffickers, which is reserved for the rules of the criminal justice system and governed by our Bill of Rights. But I do not doubt whether our nation can wage war against the nation of Venezuela using armed force governed by the laws of war. Launching an overwhelming attack on the capital of the enemy, destroying air and ground defenses, capturing a head of state, and killing his guards is a use of force that takes place only in war. Indeed, it appears that only the United States can execute such an operation with its world-class military. Many legal scholars treat that conclusion as dispositive; they insist that because invading another country constitutes war, congressional approval was constitutionally required before the operation could proceed.

But the constitutional structure makes the president—not Congress—responsible for decisions on when and how to employ military force. Although Saturday’s attack on Caracas confirms that the United States is in a state of war with Venezuela, Congress did not have to give its consent before the warships moved onto station, the aircraft launched, and the special forces hit the ground. Article I’s Declare War Clause simply does not convey that power to Congress, and critics must concede that historical practice by presidents and Congress undermines such an understanding.

Academic critics read this clause as though it said “authorize,” but the Constitution deliberately uses “declare”—a different word with a different function. When the framers ratified the Constitution, they would not have understood a declaration of war as necessary to initiate hostilities. The Constitution took the phrase “declare war” from British constitutional practice, which, as Sir William Blackstone’s Commentaries on the Laws of England (1765) explains, was among the powers held by the crown. The British, and their colonial brethren, did not understand declarations of war as serving the domestic function of constitutional authorization, but rather as defining the legal status of hostilities under international law. In the 100 years preceding the Constitution, the British waged more than a dozen wars, but they declared war only once before fighting began.

When declarations did appear, they usually came months or years after the start of the conflict. Declarations served as formal notices to other sovereigns of the legal status between countries at war and provided a public recitation of grievances. This practice would have been familiar to the founding generation, which under British rule had fought a war in North America (the Seven Years’ War) well before a formal declaration of war was issued. The Declaration of Independence was itself a declaration of war—one that was made a year after fighting had begun at Lexington and Concord. 

Other constitutional provisions confirm this understanding. Article I, Section 10 declares: “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” The framers knew exactly how to write a text that requires Congress’ approval before military hostilities begin. They even include an exception for sudden attacks that all scholars agree must reside within the Declare War Clause (even though it isn’t there). If the framers had really wanted Congress to control war-making, they should have written “The President shall not, without the Consent of Congress, engage in War, unless the United States is actually invaded or in such imminent Danger as will not admit of delay.” But they did not. As Chief Justice John Marshall observed in McCulloch v. Maryland, identical words in the Constitution should carry the same meaning, and different words must carry different meanings. By deliberately distinguishing “declare” war from “engage,” the framers created a system in which Congress and the president wield distinct tools in war within a flexible, political process.

The history surrounding the ratification of the Constitution shows that Americans did not alter the traditional Anglo-American approach to war-making. In the initial burst of state constitution writing, the revolutionaries rejected the British monarchy and experimented with weakening the executive branch. But when the framers wrote the Constitution 11 years later, they restored an independent, unified chief executive with its own powers, including the authority to wage war as commander in chief and chief executive. In Federalist 74, Alexander Hamilton explained that “the direction of war implies the direction of the common strength,” and that the authority to direct and employ this strength is a fundamental aspect of the executive power. The president should lead in wartime because, in Hamilton’s words, he can act with “decision, activity, secrecy, and dispatch.” He emphasized that “energy in the executive is a leading characteristic of good government” and is essential for protecting the community against foreign threats.

History and tradition have followed the framers’ design. For more than two centuries, neither presidents nor Congresses have required Congress to declare a war before the president could fight it. The United States has used force abroad more than a hundred times, but Congress has issued declarations only five times: 1812, 1846, 1898, 1917, and 1941. In other conflicts, such as in 1991, 2001, and 2002, Congress has passed authorizations to use military force. In still others, the White House acted without any formal congressional approval. Presidents have sent troops unilaterally to oppose the Russian Revolution, chase Mexican rebels, defend South Korea, and topple regimes in Panama, Serbia, and Libya.

Trump’s critics today would overthrow this long historical practice of presidential initiative and congressional acquiescence. But their theory creates a false conflict between the original understanding of the Constitution and the judgment of dozens of presidents and Congresses on how to wage war. If they are right, we must immediately remove Congress’ power to declare war from the Constitution. Or we must overthrow a durable system that gives presidents the initiative while allowing Congress to influence war through funding and its control over the size and shape of the military. Or we must ask the courts to stop wars that have received no declaration or authorization. From Jefferson’s naval expedition against the Barbary Pirates to Abraham Lincoln’s immediate response to secession, Harry Truman’s intervention in Korea, and the hard struggles of the Cold War, presidents have acted with dispatch to protect the nation while Congress has cooperated or dissented with its power to fund and raise the military. Rather than create a military devoted solely to homeland defense, Congress has funded an expeditionary military designed to fight offensive wars abroad and placed no restrictions on its use. 

If leading Democrats had their way, Congress could control tactics and strategy rather than the president. If Congress must approve wars ahead of hostilities, presumably it could dictate the nature of those wars. It could have ordered FDR to defeat Japan first rather than Nazi Germany, or authorized more aggressive confrontations with the Soviet Union during the Cold War. Congress’ size and deliberative structure, however, make it ill-suited for national security decisions that demand speed, secrecy, and decisiveness. Congress instead has a funding power that allows it to both deny the president the military he wants to fight a war and halt the money needed to continue hostilities. Congress can reduce or cut off resources, shrink the military, or halt supplies. It used these tools to end the Vietnam War and to block James K. Polk’s attempt to occupy more of Mexico. If presidents lead the nation into disasters, Congress can shut off funds, launch impeachments, or call upon the voters to throw out the party in power. The framers did not expect Congress to authorize every use of force or to manage military campaigns. When Congress chooses to declare war, fund conflicts, or do nothing, it is not surrendering authority. It is exercising authority. 

Academic critics conflate legal analysis with policy disagreement. They attack the Trump administration’s justifications for Operation Absolute Resolve on the grounds that stopping narco-terrorism cannot justify the use of force against Venezuela. In their view, Venezuela is only a minor producer of fentanyl and other drugs that enter the United States, and invoking narco-terrorism is inconsistent with the president’s pardon of former Honduran President Juan Orlando Hernández. Critics also warn of broader policy consequences, ranging from diminished credibility against Russia and China to the risk of military action in Colombia or Greenland. These may be legitimate policy concerns, but they are not legal arguments. The Constitution asks whether the president has the power to act—not whether his reasons satisfy legal academics.

Presidents have not always judged wisely, and some wars have proved costly mistakes. Trump’s decisive action may have removed one of the leading threats to American national security in the Western Hemisphere, but the administration still faces the difficult challenges posed by the transition of power. In Iraq, the Bush administration succeeded after great cost in fostering a democracy. But Bush, Obama, and Biden failed disastrously on the same score in Afghanistan. These victories and defeats do not mean the Constitution has failed. The framers gave the president and Congress powers with which to cooperate or fight over control over war, and they trusted in politics to resolve their disagreements. They did not require Congress to authorize military action before it begins.

Presidents of both parties have used force to topple dictators who posed a threat, in their judgment, to American national security. They relied on their authority as commander in chief and president, in whom Article II of the Constitution “vests” “the executive Power” of the United States. Those who claim that these presidents must seek a congressional permission slip misread the Constitution’s text, structure, and history. If Congress believes a president has acted illegally, it has plenty of tools at hand, including the power of the purse and, ultimately, impeachment. Calls to “restore” constitutional checks and balances amount not to preservation but to a rewriting of more than two centuries of practice, by both the president and Congress, under the Constitution.