In the wake of President Trump’s “snatch” operation against Nicolas Maduro and his wife, the question has been raised by Democrats and the media as to what kind of congressional authorization was needed for the strike. It’s a question Sen. Mike Lee posed when news of the operation broke, only for him to confirm later to his satisfaction that it was a legitimate law-enforcement action and not military. But as Sen. Tom Cotton observed on Face the Nation, however you slice it, this was a valid exercise of the president’s inherent authority as commander-in-chief, and complaints about congressional authorization are misplaced. Sen. Cotton is right.
The fact that Maduro is a fugitive drug trafficker should end the matter in and of itself. In early 2020 a Manhattan grand jury issued a scathing indictment against Maduro for his activities in the international drug trade and he now awaits arraignment in the Southern District of New York. At its heart, then, this was a law-enforcement exercise and General Dan Caine was sure to mention that law-enforcement officers accompanied our forces on the snatch operation.
There is precedent on point for this in the case of Manuel Noriega, the Panamanian narco-autocrat taken into custody by George H.W. Bush and subsequently convicted of drug trafficking. Noriega, like Maduro, was under federal indictment for his drug crimes. Also like Maduro, Noriega purported to be a head of state following a stolen election whose outcome the United States didn’t recognize. The Supreme Court has made it abundantly clear that the power of recognizing foreign nations is exclusive to the president. In neither Panama and Venezuela, did the president—and thus the United States—recognize Noreiga or Maduro as the legitimate president, which means that for the purposes of American law, they weren’t.
In other words, as with Noriega, Maduro was just an indicted, foreign drug kingpin, hiding overseas. And, as with Noriega, a police action abroad to apprehend the criminal was simply the president exercising his obligation to “take care” that the laws be executed through his command over the armed forces. When we snatched Noriega, Congress had no say in the matter, even though Operation Just Cause went on for over a month and involved over 350 American casualties. It beggars belief to think it should be different for Operation Absolute Resolve which lasted a couple hours and mainly resulted in dead Cuban mercenaries.
Even putting aside the indictment, though, the president has considerable warmaking powers in the absence of Congress. He commands the armed forces which means that he can command them to attack our enemies. While of dubious constitutionality, the War Powers Act recognizes this power even as it purports to cabin the president’s authority on the back end.
Congress’s power is in declaring war, which is a different act than engaging in hostilities. Indeed the August 6, 1787, draft of the Constitution empowered Congress “To make war”—not, as finally ratified, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Making war involves taking military action whereas declaring war is about legal relationships between countries. Similarly letters of marque and prize rules are fundamentally legal concepts, strengthening the contention that war declaration involves legal relationships more than kinetic action.
Congress has broadly understood this to be the case especially in the Western Hemisphere. Our forces have intervened in Latin America nearly a hundred times and the only times war was declared by Congress were in the Mexican-American War and the Spanish-American War. That is, we declared war when we fought near-peer powers and then took significant territorial concessions in the aftermath.
Less formal congressional authorizations of force fare little better. General Pershing’s “punitive expedition” against Pancho Villa? Unauthorized. The Battle of Veracruz? Unauthorized. American Marines occupying Nicaragua for nearly 20 years? Unauthorized. The intervention in Santo Domingo? Unauthorized.
Predicates for the very Monroe Doctrine can be found in unauthorized warmaking against Spanish possessions. During the Seminole Wars, General Andrew Jackson invaded Spanish Florida, exceeding the explicit terms of the conflict’s congressional authorization, under the orders—and Article II power—of President James Monroe.
This doesn’t mean that Congress has no role. It retains the power of the purse. If it doesn’t like how a president is commanding the armed forces, it can always cut off the money. It can also try to deauthorize military activity through various forms of legislation like the NDAA, but, as with resolutions under the War Powers Act, this may be more of a moral victory than a practical one.
It’s entirely appropriate for Congress to demand that the president comply with oversight as it decides how to spend that money. Oversight, however, is very different from the kind of heads-up warning most Democrats today seem to demand. Oversight involves ex post investigation to make legislative decisions about the future; notification is about ex ante knowledge with all the operational danger that entails.
Congress should ask questions about the Maduro operation if it sees fit. Given how seamlessly it was executed and how reviled Maduro is among American Hispanics, Republicans should welcome being thrown in that particular briar patch. But the operation itself was entirely justified absent any congressional authorization, both as a law-enforcement and as a military exercise. That’s worth keeping in mind in the event President Trump continues his good work in Cuba and Colombia, as he has intimated that he might.
Michael A. Fragoso is a partner at Torridon Law PLLC and a fellow at the Ethics and Public Policy Center. He was previously chief counsel to Sen. Mitch McConnell.