The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Congressional Acquiescence Facilitates Executive Branch Military Adventurism
Here as elsewhere, lethargy in the legislature is no way to counter execss energy in the executive.
Yesterday, Civitas Outlook published my column on the lawfulness of the Trump Administration's drug boat strikes. Depending on your view, that column is either quite timely (there were additional boat strikes on December 31) or completely overtaken by events.
For reasons I explain, the strikes are easier to justify in light of late 20th-century precedent than they are under the original understanding of the relevant constitutional provisions. The same holds true of the Trump Administration's attack on Venezuela to arrest Nicholas Maduro (and bomb the Hugo Chavez Mausoleum). In this regard, my views are quite similar to those of Jack Goldsmith, noted by Eugene below.
These portions of the column are relevant on this point:
Presidents of both parties have assumed the authority to direct military operations without legislative authorization. The Office of Legal Counsel (OLC) in the Department of Justice has generally approved such actions, reasoning that the deployment of military forces, even offensively, does not require prior congressional approval or a declaration of war, provided the operations are of insufficient "nature, scope and duration" to constitute an actual war. As Professor McConnell notes, OLC can now draw on a long history of such actions to justify its conclusions, but "has made little or no attempt to square" its conclusions "with constitutional text or early history."
Whatever the founding-era understanding, Presidents have increasingly taken it upon themselves to deploy the nation's military without seeking congressional authorization. This has placed the onus on Congress to police and constrain the President's desire to project military force overseas. As my Civitas colleague, John Yoo has argued, if Congress wishes to constrain a President's military adventurism, it may use the power of the purse. The military that the President has at his disposal to deploy is a function of what Congress has authorized and funded. And if a President wants to use that military in ways Congress disapproves of, potentially blurring the line between waging war and preventing crime (such as drug smuggling), Congress can limit appropriations or enact other constraining legislation.
If, as President Trump has announced, U.S. forces will be effectively running things in Venezuela until a new government is in place, this may trigger the War Powers Resolution, though the executive branch has not always faithfully complied with its constraints. From my column:
Congress sought to limit the President's ability to push the nation into war without legislative approval by enacting the War Powers Resolution in 1973. Among other things, this law directs the President to inform Congress within 48 hours of deploying U.S. military forces into "hostilities" and "situations where imminent involvement in hostilities is clearly indicated by the circumstances," unless the deployment is pursuant to legislative authorization (such as an AUMF). Once this notice is given, the War Powers Resolution provides that the President has 60 days to withdraw the military forces unless Congress has authorized the continued deployment.
While most Presidents have abided by the Resolutions notice requirement most of the time, compliance with the 60-day withdrawal requirement has been honored in the breach. Sometimes the executive branch has offered tortured explanations for its failure to comply, such as by arguing that actions in support of NATO operations or the deployment of air power without ground forces do not constitute covered "hostilities." In other instances, no justification has been given for failing to withdraw forces or seek congressional authorization for continued operations. . . .
The OLC has determined that bomb and missile strikes against alleged drug boats and cartel members are not covered "hostilities" because U.S. service members are not in danger, according to press reports. (The relevant memos have not been released.) In effect, the Administration's position seems to be that the War Powers Resolution is not really triggered so long as those targeted by the U.S. military cannot shoot back. This may seem like an absurd argument, but it is not a Trump Administration innovation. The Obama Administration used this precise rationale to justify continued air strikes on Libya for more than 60 days in 2011 without congressional authorization (although it is interesting to note that this argument was made by lawyers in the State Department and the White House, and was not embraced by OLC). Thus, the Trump Administration can argue, with some force, that it is acting in accordance with established practice to which Congress has acquiesced.
Note, however, that after the U.S. intervened in Panama to arrest strongman Manuel Noriega, Congress passed a resolution approving of the action. If the Trump Administration anticipates a continued military presence in Venezuela, it should also seek congressional approval (and should do so whether or not it anticipates threats to U.S. forces). And if the Administration does not seek legislative approval on its own accord, Congress should insist on it (and threaten more than a small portion of Secretary Hegseth's travel budget if the Administration does not cooperate).
My columns concludes:
It may seem incongruous that the President may initiate a de facto war against drug cartels and their supporters without a Congressional declaration of war, but unless and until Congress reasserts its prerogatives, the commander in chief will dictate when and how U.S. military force is deployed. If legislative approval was necessary to authorize attacks on the Barbary pirates over two centuries ago, such approval should be required to assault the narco-pirates of today. But such constraints on military adventurism are not self-enforcing. Such constraints require legislative action. As with so many issues today, Congress is asleep at the switch, giving the President free rein. Lethargy in the legislature is no way to counter the executive's excess energy.
