From an originalist perspective, I think it’s clear that President Trump did not have the constitutional power to take the actions he took against the Maduro government in Venezuela.
As argued at length here, the Constitution allocates to Congress — and by implication denies to the President — the power to initiate military action against a foreign nation. That was the original meaning of “declare war”: to initiate a state of war, which could be done by proclamation or by hostile military action. This meaning was expressed by a wide range of interpreters in the founding era and widely assumed to be the constitutional rule in the immediate post-ratification period.
The President’s action against Venezuela seems to fit this original sense of declaring war. Consider if Iranian forces seized the U.S. President on U.S. soil, and brought the President back to Iran to stand trial for offenses against Iranian law. Would the U.S. consider itself at war with Iran as a result, and act accordingly? The answer seems obvious. The fact that in this case Venezuela may lack the power and resolve to mount a full scale military response, as the U.S. would in the Iran hypothetical, shouldn’t change the legal conclusion that war has been initiated by the U.S., even if Venezuela declines to pursue it. So under the Constitution’s original meaning, the President needed Congress’ approval to act.
But many of the President’s critics in the Venezuela matter are also (to put it mildly) originalism skeptics. We’ve been told that originalism is impossible or ahistorical or immoral; that it leads to bad results or is a cover for imposing conservative political values. People who hold these views should not care what the Constitution originally meant, or what the founding generation originally understood,. about presidential war powers.
And under leading nonoriginalist approaches, the constitutionality of the Venezuela operation is at least plausibly defensible. Modern practice suggests that the President has some authority to initiate limited military actions against hostile governments: George H.W. Bush’s 1989 Panama operation; Clinton’s bombing of Yugoslavia; and Obama’s bombing of Libya, to name a few — plus, to reach further back, actions such as Woodrow Wilson’s intervention against the Huerta regime in Mexico. (See further discussion here; as applied to the Venezuela situation, see here from Jack Goldsmith).
Although some members of Congress objected to these actions, Congress as a whole reached no institutional consensus against them. Further, modern practicalities may suggest more need for unilateral presidential authority than in the eighteenth century. The speed, scope and asymmetry of modern conflicts may require the secrecy and decisiveness of immediate executive action without extended public deliberation. An evolving Constitution, taking into account modern conditions and modern practice, seems at least open to recognizing the authority the President claims with regard to Venezuela.
So you can say the President acted unconstitutionally, or you can say originalism is bunk, but I don’t think you can say both.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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