Please do me a favor: Before you tell me President Trump has done something unconstitutional, read the Constitution and cite the provision you think he has violated.
“That’s easy,” someone might say. “He has arrested and abducted the President of Venezuela, and Article I, Section 8, reserves to Congress the power to declare war.”
True, but the power to conduct foreign affairs is shared between the President and Congress, and control of the military is shared by the President, Congress and the States. Congress has the power to declare war, but does that mean the President can take no military action whatsoever short of a congressional declaration of war? If a hostile power launches a missile attack upon the United States, by the time we discover it, we have less than an hour to respond. Must we convene Congress and declare war?
The Constitution doesn’t say that. Article II, Section 2 provides, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” While Congress has the power to “raise and support Armies,” to “provide and maintain a Navy,” and to “make rules for the Government and Regulation of the land and naval Forces,” the overall day-to-day command of the armed forces rests with the President.
On at least 125 occasions, both Democrat and Republican presidents have deployed military forces without a congressional declaration of war. That doesn’t make it constitutional, but the fact that President Washington did so during the Whiskey Rebellion and against tribes in the Northwest Territory, as did John Adams in the Quasi-War with France (1798-1800) and Thomas Jefferson in the First Barbary Wars, suggests that the Founding Fathers believed such actions were justified.
But where does the President’s authority end and the authority of Congress begin?
To address that question, Congress passed the War Powers Resolution of 1973 over a presidential veto. No President has acknowledged its validity, and the Supreme Court has never ruled on its constitutionality. The Resolution provides that:
- “In every possible instance,” the President must consult with Congress before introducing our military into hostilities or situations in which hostilities are imminent.
[“In every possible instance?” Could we trust U.S. Reps. Alexandria Ocasio-Cortez (D-N.Y.) or Ilhan Omar (D-Minn.) with top-secret military information?]
- If the President commits forces to military action, he must notify Congress within 48 hours.
- If Congress so demands, the President must withdraw military forces from such situations.
- Unless Congress declares war or otherwise authorizes military action, the President must withdraw forces within 60 days, although he may take an additional 30 days to withdraw them for their safety and security.
On January 8, the Senate voted 52-47 to move forward a measure to limit the President’s authority to continue military operations in Venezuela. Five Republicans joined 46 Democrats for this procedural vote, which doesn’t mean the resolution has passed the Senate; it only means it will be brought to the Senate floor for debate and a full vote. Several of the Republican senators who supported the resolution said they supported the President’s capture of Maduro but wanted congressional authorization for further action in Venezuela. The resolution must then pass in identical form in the House and then go to the President. Trump’s signature on that resolution is about as likely as me endorsing Gavin Newsom for President, and the possibility of the resolution gaining a 2/3 vote of both houses to override Trump’s veto is even less likely than that.
But aside from all that, did Trump do the right thing by going into Venezuela to arrest Maduro?
First, it is hard to deny that the Army’s Delta Force conducted the operation with superb military precision.
But there is something unsettling about toppling other nations’ heads of state. It invites retaliation and constitutes interference in other nations’ politics. However:
- It is debatable whether Maduro was a legitimate head of state. He appears to have been decisively defeated in his 2024 reelection bid but held on to power through authoritarian control.
- Trump says Maduro is charged with crimes of “deadly narco-terrorism against the United States and its citizens,” causing “hundreds of thousands” of American deaths and ruined the lives of countless others by smuggling “deadly and illicit drugs” into the U.S.
Even if he is a legitimate head of state, should that exempt him from being accountable for crimes against the United States?
- There is precedent for this type of action. In January 1990, U.S. forces invaded Panama, captured de facto ruler Manuel Noriega, and flew him to Florida, where he was tried and convicted of drug trafficking. The court ruled that it had jurisdiction to try him for his crimes, but did not rule on the legality of his arrest.
- Worldwide reactions to Madura’s arrest have mostly been critical, but quite supportive in Latin America. Could this indicate some hemispheric solidarity, the many American nations coming together under U.S. leadership?
- As a byproduct of Trump’s action, the interim Venezuelan government is releasing prisoners held “for political reasons.” This could number as high as 800 – 1,200, including prominent evangelical pastor Rudy Palacios and other Christian pastors.
So what’s next for Venezuela? Nation-building? That doesn’t always work out, especially when it’s imposed from outside. People often prefer their own homegrown tyrant to “freedom” imposed by a foreign power. Some say that’s the lesson learned from Iraq, but Venezuela may be an entirely different culture.
I expect criticism for this column, right and left. That’s fine; my email’s below. But before you tell me Trump has violated the Constitution, please read it.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He and his wife Marlene live in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
Don't miss out! Subscribe to our newsletter and get our top stories every weekday morning.
