History Supports Trump’s Operation To Take Down Maduro
Last week, the Senate passed by a vote of 52-47 a provisional war powers resolution that would stop President Donald Trump from deploying the U.S. armed forces into hostilities within or against Venezuela unless authorized by Congress. The resolution would still need to be passed by the Republican-led House, and Trump has already signaled he would not sign it, but it shows some unease among legislators after the U.S. military seized Venezuelan leader Nicolás Maduro in a nighttime raid. Sen. Tim Kaine, D-Va., a sponsor of the measure, stated that it was “long past time for Congress to reassert its critical constitutional role in matters of war, peace, diplomacy and trade.”
Trump isn’t the first president to unilaterally order U.S. forces abroad to overthrow a regime he didn’t like. And once again, as repeatedly in American history, we are seeing a constitutional battle between Congress and the president over the power to order U.S. armed forces into hostilities. The long history of this contest suggests that Trump is on firm ground when he orders troops into combat — even without congressional approval.
The first time a president sent armed forces abroad without advance approval by Congress was in 1800, barely a decade after the adoption of the Constitution. President John Adams ordered the Navy to aid Toussaint L’Ouverture’s rebellion against France in Santo Domingo. Our forces blockaded and bombarded the port of Jacmel, controlled by Toussaint’s rival. Two years earlier, Congress had authorized the seizure of French vessels in the so-called Quasi War with France, but it did not sanction attacks on French possessions such as Santo Domingo.
In 1801, Congress was not even in session when President Thomas Jefferson dispatched a fleet of warships to the Mediterranean. He ordered the fleet to meet with force hostility from the Barbary nations of North Africa to “best protect our commerce and chastise their insolence — by sinking, burning or destroying their ships and Vessels wherever you shall find them.” Although fighting did not take place on this occasion, the American ships blockaded two Tripolitan vessels anchored at Gibraltar, an act of war.
There have been scores of such presidentially ordered military engagements throughout American history. Recent examples include President Ronald Reagan’s actions in Lebanon in 1982 and Grenada in 1983; President George H. W. Bush’s Panama engagement in 1989; 29 military actions ordered by President Bill Clinton, including the bombing of Kosovo; and the dispatch of troops to Libya by President Barack Obama in 2011.
The President’s and Congress’s Roles
Opposition political parties, inveighing against unilateral presidential military action, repeatedly invoke Article I, Section 8 of the Constitution, which empowers Congress “to declare War.” Presidents reply by quoting Article II, Section 2, which states that “The President shall be Commander in Chief of the Army and Navy of the United States.” Scores of military engagements throughout American history, only a minority of which have been authorized by Congress beforehand, would seem to make a mockery of congressional authority. But we have never had an authoritative U.S. Supreme Court ruling on the issue, and since we’re unlikely to get one, the contest for power between presidents and Congress will almost certainly continue indefinitely.
If, as legal scholar Alexander Bickel once said, “we are dealing in an area where the Constitution is the Constitution of practice,” then it is clear that under certain circumstances the president may order the use of military force on his own authority. But what are the justifying conditions?
Having studied nearly all of these types of events over the course of American history, I conclude that they each (the Korean War serving as a major exception) were relatively minor military engagements, not necessarily minor in terms of their effects, but in terms of the size of the force used and the length of time in combat. In other words, the word “war” as used in Article I of the Constitution has, through practice, come to refer to relatively long-term conflict by a sizeable military force. Under this “magnitude test” any hostilities short of war are within the president’s authority to order without congressional approval. But any major military conflict would have to be approved by the legislative branch, either beforehand or during the event. Nor does congressional approval require a formal declaration of war; Congress can authorize a war (as it did with Vietnam) without such a declaration.
Congress’s Authority to Terminate War
If, through practice, presidents have acquired the authority to begin hostilities without congressional approval, does Congress have the authority to terminate them? Congress has asserted this power, most notably with the War Powers Resolution of 1973, a product of the intense dissension over the Vietnam War. But this legislation is deeply flawed and itself of dubious constitutionality.
Congress nevertheless has a potent weapon in this contest: the power of the purse. Starting in 1969, it relied on its constitutional authority to control expenditures to end the Vietnam War. On Jan. 23, 1973, President Richard Nixon announced that an agreement had been reached between the United States and North Vietnam to end the war. However, fighting between North and South Vietnam continued, as did United States air strikes in Cambodia. In August 1973, Congress took its most far-reaching funds cut-off action ever, halting the use of appropriated funds “to support directly or indirectly combat activities in, over or from off the shores of Cambodia.” For the first time in United States history, Congress terminated all funding for an ongoing major military conflict. In a negotiated compromise with the White House, President Nixon signed the legislation into law.
War Powers Resolution Passed
Emboldened, Congress now sought to assert its authority to control future presidential military engagements. In November 1973, it passed the War Powers Resolution over President Nixon’s veto. This law stated that the president “shall consult” with Congress before introducing armed forces into hostilities and submit a report to congressional leaders within 48 hours if the hostilities were not already authorized by the legislature. More controversially, section 5(b) of the resolution states that “the President shall terminate any use of the Armed Forces” within 60 days of the report or events that required such a report. In addition, section 5(c) declares that Congress may terminate the hostilities by a concurrent resolution, which amounts to a congressional veto since such an enactment does not go to the president for approval.
The resolution has not been a success. Since 1973, presidents have filed at least 168 reports to Congress reporting hostilities abroad, but only once was the War Powers law referenced (by President Gerald Ford in regard to the SS Mayaguez incident of 1975). Moreover, though honored more in the breach, the resolution seems to encroach on the president’s authority.
What if there are imminent threats to or actual attacks on United States forces or nationals abroad? Surely, the president would have the authority as commander-in-chief to direct the military to respond with force without congressional approval. And if military conflict ensued, could he legally be required to withdraw U.S. forces after an arbitrary 60-day deadline if he thought withdrawal at that time inappropriate? Equally dubious would be a concurrent resolution to force the president to withdraw forces against his better judgment. Moreover, a concurrent resolution on a major public policy issue countermands the requirement of Article I, Section 7, of the Constitution that “Every Bill … shall, before it becomes a Law, be presented to the President of the United States.”
Whatever the wisdom of President Trump’s military action in Venezuela or the bombing of Iran’s nuclear facilities, and whatever the legality of the arrest of Maduro under international law, when it comes to U.S. constitutional law, history clearly supports his authority.
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