Making a Mockery of Checks and Balances
Trump’s attack on Venezuela shows how far we have deviated from constitutional restraints.
President Donald Trump’s “large scale strike” on Venezuela to capture President Nicolás Maduro was unquestionably illegal and unconstitutional, but it is highly unlikely that Trump will face any consequences. It shows how far we as a country have departed from having a president who is constrained by the Constitution and from basic notions of checks and balances.
The United States violated international law by invading a sovereign state and capturing its president. The United Nations Charter, which the United States signed in 1945, prohibits countries from using or threatening force “against the territorial integrity or political independence” of any nation.
Under the Constitution and the War Powers Resolution, a federal statute adopted in 1973, congressional approval is required for the United States to go to war; invading another country is a quintessential act of war. Indeed, in November, Susie Wiles, Trump’s chief of staff, said in an interview said that if Trump “were to authorize some activity on land, then it’s war, then (we’d need) Congress.” Around the same time, Secretary of State Marco Rubio and Defense Secretary Pete Hegseth, in a briefing to members of Congress, said the same thing.
But none of this mattered to Trump. In that Vanity Fair interview, Wiles said that Trump believes “there’s nothing he can’t do, nothing, zero.” A country that is ruled by someone who can do anything is not a constitutional democracy under the rule of law. That is why the invasion of Venezuela is so chilling: It is another big step away from being a nation governed under a Constitution based on checks and balances.
The Constitution created an elegant structure meant to require two branches of government to be involved for any major action of the federal government. Enacting a law required involvement of Congress and the president. Enforcing law necessitated a prosecution by the executive branch and a conviction by the courts. Appointing ambassadors or Supreme Court justices required nomination by the president and confirmation by the Senate. A treaty is negotiated by the president but effective only if ratified by the Senate.
War powers, too, were divided between Congress and the president. Congress has the power to declare war, and the president is the commander in chief. Although there long has been debate over the power of the president to use troops without congressional approval, the Constitution was meant to have both branches of government involved before the United States goes to war.
Of course, there can be emergencies when it is impossible for Congress to be consulted or involved before troops are used. But that was not the case in the invasion of Venezuela.
Had Trump gone to Congress for approval, he would have needed to justify the military actions against Venezuela—bombing its ships, a CIA drone strike within the country, capturing its president and his wife. Such a justification to members of Congress and to the public is essential. Maduro was a brutal dictator who stole the election to remain in power, but that does not warrant invading another country to overthrow and arrest its president. Sadly, there are many awful rulers in the world.
Trump has said is that this was to combat “narco-terrorists.” This not a credible claim. Venezuela is a minor producer of fentanyl and other drugs that come into the United States. Besides, this rationale cannot be reconciled with Trump’s recent pardon of former Honduran President Juan Orlando Hernandez, who ran a major drug operation and was convicted in federal court.
Perhaps this is about, as Trump has suggested, gaining control of Venezuela’s vast oil fields. If so, Congress should have been part of deciding whether to engage in such a blatant violation of international law as to invade a nation to control its resources.
Trump likely feared that if he had gone to Congress for authority to launch military actions against Venezuela, even the Republican controlled House and Senate would have said no. But that is exactly why the Constitution intended for two branches of government to be involved in war making decisions.
Trump certainly also thought that he did not need congressional approval, that as commander in chief he can use the military however he wants. Unfortunately, there have been many instances in which both Republican and Democratic presidents have used troops without congressional authorization. For example, in 1989, President George H.W. Bush invaded Panama to depose its de facto ruler, Manuel Noriega, who was wanted by U.S. authorities for racketeering and drug trafficking. In March 2011, President Barack Obama authorized the bombing of Libya.
But congressional approval does not prevent foreign policy disasters. In 1964, Congress passed the Gulf of Tonkin Resolution authorizing military force to repel North Vietnamese aggression. After 9/11, Congress passed the Authorization for the Use of Military Force to respond to the attack by al Qaeda. This authority allowed the United States to invade Iraq to depose Saddam Hussein and military action in Afghanistan, both of which had disastrous consequences.
But under a Constitution committed to checks and balances, there is a limit on what the president can do unilaterally, especially in a matter so grave as involving the United States in war. It now is imperative that Congress exercise its constitutional powers. It should immediately hold oversight hearings to learn the objectives of the military action in Venezuela. Congress must be part of deciding what comes next. It surely cannot be, as Trump implied, that the United States will govern Venezuela. Congress controls the purse and should decide how the Trump administration spends money in Venezuela (and in any other military actions).
The consequences of Trump’s invasion of Venezuela are potentially enormous. It will be harder to condemn aggression by Russia or China. It well could involve a long-term involvement in Venezuela at great costs; occupying another nation rarely goes well. It could be a precursor of unwarranted aggression against other countries on Trump’s whims.
This is exactly why our Constitution creates checks and balances—it is a bulwark against a dictator. It is up to Congress, and ultimately the American people, to say loudly that unchecked presidential power, like the invasion of Venezuela, strikes at the very core of our constitutional system of government.
Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.
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"There is a limit on what the president can do unilaterally, especially in a matter so grave as involving the United States in war. "
As usual, unless something directly affects maga Congress, they would prefer to do nothing and pick up their paychecks. How many Republicans have family members in active combat positions? None? Or is risking their lives for Trump's sociopathic ego okay with them? Better yet, is spending their own tax dollars to prop up a corrupt regime okay with them? Since they already do that with Trump's vindictive use of the DOJ, I suppose it is.
The action in Venezuela without consent of Congress will only embolden p47 to act on Columbia, Mexico, Cuba, Panama, Greenland, and possible Canada all to show Putin and Xi what a badass he thinks he is. But unlike the latter two, who listen to their military experts and are far more experienced in international affairs, p47 has surrounded himself with yes men and women without the experience needed for the outdated Monroe Doctrine to succeed. The outcome will be far worse than Vietnam, Iraq, and Afghanistan combined.