On Jan. 3, President Donald Trump ordered a military operation that bombed Venezuelan air defenses and other targets in the country, seized Venezuelan president Nicolás Maduro and his wife Cilia Flores from their home, killed approximately 75 or 80 people, caused the injury of around six or seven U.S. service members, and potentially resulted in regime change Venezuela. As described in the War Powers Report subsequently provided to Congress, “the Armed Forces of the US conducted targeted and limited military strikes within the territory of the Bolivarian Republic of Venezuela.” The operation was more extensive than this brief sentence would indicate, distinguishing it from other contested unilateral uses of force that relied on unmanned “over-the-horizon” strikes (Syria in 2017 and 2018) or other types of one-off kinetic strikes (Iran in summer 2025).
Numerous officials in the Trump administration have publicly acknowledged that this named military operation was inherently risky (calling it “very dangerous” and “audacious”). It involved approximately 200 U.S. personnel on the ground in Caracas. There were, as would be expected in an operation of this nature, fire fights between U.S. forces and opposing forces, involving both Venezuelan and Cuban military forces. What’s more, the operation took place in the context of an extensive military build-up in the region, coupled with threats against Maduro to cede power, as well as an ongoing U.S. naval blockade of Venezuelan oil tankers. (The threats and blockade continue today.)
Among the many questions immediately raised by the named Operation Absolute Resolve is: did the president have the authority under U.S. law to undertake this dramatic, forcible military operation without congressional authorization? In the Q&A below, we explain why he did not. The analysis is similar to one that two of us published in 2019, and updated in 2025, regarding the unilateral use of military force against Iran.
As we explained then, “there are only two sources of authority for the use of force abroad – the Constitution and congressional authorizations for the use of military force (or AUMFs).” There is clearly no statute passed by Congress that could authorize the use of military force against Venezuela, nor is anyone claiming such authorization exists.
The question, then, is whether the President had authority under Article II of the Constitution to order this operation without Congress’ authorization. We believe the answer is no, based on the nature and location of the operations, the expected (and realized) risk of U.S. casualties, the known risks of escalation, the operation’s purpose of removal of a sitting head of State, the use of lethal force against two States’ security forces, and the context of other military actions (threats of force, naval blockade) before, during, and after the operation took place.
Alongside the lack of congressional authorization, we also note the President’s constitutional obligation to “take Care that the Laws be faithfully executed,” was also breached because the operation violated the prohibition on the use of force in the U.N. Charter. (See Goodman’s analysis including Congress’ long expressed interest in the President’s complying with such treaties).
1. Did the president need authorization from Congress to use U.S. military force against Venezuela?
Debate on the scope of the president’s authority to use military force without congressional authorization is not new, and interbranch disputes on this question have persisted under recent administrations of both political parties (from Obama to Trump, this includes uses of force or deployments in Libya, Yemen, Syria, and Iran). Congress has typically taken a more limited view of the President’s unilateral authority to use military force and has pushed back on presidential claims in many cases (often in bipartisan resolutions, none of which were enacted due to presidential vetoes or failure to garner sufficient votes). Meanwhile, the executive branch’s much broader approach has continued to expand the purported zone of unilateral authority in recent years. As we previously explained:
The executive branch, through consistent historical practice in Republican and Democratic administrations, and as reflected in a series of opinions by the Justice Department’s Office of Legal Counsel (OLC), has taken a relatively expansive view of the president’s Article II authority to initiate the use of force, arguing that it has the ability to do so when: (1) there is an important “national interest” in doing so (Curtis Bradley and Jack Goldsmith have explained that this has become a very expansive concept in modern practice; Marty Lederman has suggested the concept should be understood as limited to significant national interests that have historically supported such unilateral actions in the past); and (2) the use of force does not constitute “war” in the constitutional sense.
The latter limitation is because Article I of the Constitution delegates the power to “declare war” to Congress. The executive branch has argued, in essence, that if the expected “nature, scope, and duration” of the military engagement falls below the threshold of “war,” the president may use force without congressional authorization. In the OLC’s view, “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” The OLC opined most recently that the limited strikes against Syria by the United States in response to Syrian President Bashar al-Assad’s use of chemical weapons did not cross this threshold. Prior OLC opinions reached a similar conclusion with respect to U.S. military strikes in Libya in 2011, and U.S. military activities in Haiti in the 1990s, among others.
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The framers of the Constitution gave the authority to declare war to Congress, as well as the authority to raise and support armies, provide and maintain a Navy, provide for the common defense, regulate detention and seizure of vessels in war, and a host of other powers related to war and foreign affairs, in part to prevent the United States from being drawn into conflict for unpopular purposes or without debate and consideration by the representatives of the people. The Constitution’s design anticipates that Congress would be less inclined to go to war than the executive branch — this is a feature, not a bug. (Of note, it has long been understood that even though Congress has the lion’s share of authority in war-making, the president does have at least some concurrent if not exclusive authority in regard to the conduct of hostilities and to use force to repel a sudden attack on the United States.)
What’s more, even in the OLC’s view, the threshold for “war” in the constitutional sense is more easily met when the use of force at issue is against another nation state (rather than in its territory but with its consent) where there is a high likelihood of escalation.
Applying even the OLC’s expansive view from its recent opinions to Operation Absolute Resolve, the Executive action clearly crosses the threshold for requiring congressional authorization.
Extensive U.S. objectives: As we mentioned in the Iran context, the U.S. objectives for the use of force factor into the analysis. In the Venezuela case, there was a clear objective of removing the sitting head of State from his own territory. This distinguishes the operation from the strikes in Syria or Iran, which did not have regime change objectives (despite, of course, open U.S. hostility toward those regimes). Based on statements made by the President and his cabinet, the Venezuela operations’ objectives appear relatively open-ended, with Congressional leaders expressing concerns about the lack of a defined scope. The President has continued to threaten senior Venezuelan government officials with the use of additional military force if they do not meet U.S. demands.
Risk of escalation: With respect to the risk of escalation, Operation Absolute Resolve involved the use of force against the security forces of two States – Venezuela and Cuba. Both of those states are our geographic neighbors (unlike Libya, Syria, or Iran). A factor in the OLC’s analysis is whether a military operation would “inflict substantial casualties as a result of the deployment,” and the January 3 operation reportedly resulted in 80 killed in action.
The operation reportedly killed 32 members of Cuban security forces deployed in Venezuela on a military mission. Dozens more Cuban service members are thought to have been injured or suffered severe burns during the U.S. operation, according to the Wall Street Journal reporting.
The administration was presumably aware Cuba’s security forces would get caught up in the fight. Two Delta Forces had reportedly established “a ‘pattern of life’ on Maduro in advance of the operation, mapping out his location and daily movement.” A CIA team located in Caracas for months was reportedly able “to map out minute details about his routines.” On Jan. 4, Sec. Rubio stated, Maduro’s “entire, like, internal security force, his internal security apparatus is entirely controlled by Cubans. … It was Cubans that guarded Maduro. He was not guarded by Venezuelan bodyguards. He had Cuban bodyguards.”
In addition, the operation anticipated a second wave of attacks, according to the President. And he has explicitly stated that the second wave could still occur. The President said on Jan. 3, “We’re prepared, we were prepared to do a second wave. … We were out there with an armada like nobody has ever seen before. And we’re prepared, and we were prepared. Frankly, probably thought we were going to have to do it, but we were prepared for a second wave going in.”
As a matter of international law, the “international armed conflict” initiated by Operation Inherent Resolve persists (see #6 in this Expert Q&A). That’s in part because the United States maintains a massive force in the area (“one of the largest naval deployments in modern history,” Sec. Rubio recently stated), and the President continues to threaten to use further military force if Venezuelan authorities do not “cooperate” with U.S. demands. Additionally, the United States maintains enforcement of a military quarantine of sanctioned Venezuelan oil tankers.
[For the law on when a blockade involves an act of war and “aggression” under international law, see Michael Schmitt and Rob McLaughlin, Blockading Venezuela: The International Law Consequences.]
These are all factors that would weigh in the OLC assessment of whether the military action involves “‘prolonged and substantial military engagement”of U.S. forces. It clearly does.
Risks to U.S. personnel: Two of the most expansive executive branch opinions in recent years (Libya and Syria) have justified the President’s ability to engage in military operations without congressional authorization on the basis that the operations involved no U.S. troops on the ground and thus placed no American service members’ lives at risk.
Operation Absolute Resolve placed a significant number of U.S. forces in harm’s way. According to the President, two service members were wounded and one helicopter was struck. U.S. officials have since acknowledged about half a dozen soldiers were injured in the overall operation (other reports put it at seven). “Even though Venezuelan air defenses were suppressed, the U.S. helicopters came under fire,” the New York Times reported.
Given the nature and scope of the operation, there was of course a risk that casualties could have been more extensive. As President Trump stated in remarks on Jan. 3, “It was an operation against a heavily fortified military fortress in the heart of Caracas.” He later added, “This is a very dangerous attack. This is an attack that could have gone very, very badly.”
Aboard Air Force One, the President also acknowledged his awareness of the “great danger” in advance:
“I knew the possible danger. It was a very dangerous operation. It was amazing that we had a few injured, but all are in good shape right now. But I knew there was great danger. They got off the helicopters, and the helicopters were being shot at. They got on the ground. Amazing, amazing talent and tremendous patriotism, bravery. The bravery was incredible. They got off the helicopter, and the bullets were flying all over the place.”
The Chairman of the Joint Chiefs of Staff stated:
“This was an audacious operation. … Failure of one component of this well-oiled machine would have endangered the entire mission and failure is never an option for America’s joint force. Those in the air over Caracas last night were willing to give their lives for those on the ground and in the helicopters.”
“There were multiple self defense engagements as the force began to withdraw out of Venezuela,” the Chairman added.
Paradoxically, Secretary Rubio stated that the “number one reason” for failure to notify Congress was “operational security.” It “would have put the people who carried this on … in harm’s way,” the secretary said. He then thanked the press for not reporting about the operation in advance, because “lives could have been lost. American lives.”
2. But wasn’t this a law enforcement action, not a use of military force? Can’t the president order the military to assist with law enforcement operations without congressional approval?
This was a named military operation (“Operation Absolute Resolve”) that also had a law enforcement function. The two are not mutually exclusive. (Secretary of Defense Hegseth described it as a “joint military and law enforcement raid.”) The President does have some unilateral constitutional authority to defend U.S. nationals in peril, including U.S. law enforcement personnel.
Of course, any peril U.S. law enforcement officials or U.S. forces may have faced was a direct result of the U.S. operation itself – there was no attack by Venezuelan forces, actual or imminent, on U.S. nationals, armed forces, or other personnel (as opposed to other U.S. operations conducted without congressional authorization that had the goal of protecting U.S. persons or property, rescuing nationals in peril, evacuating U.S. embassies, and the like).
Moreover, the use of military force here was undeniable and extensive, and is arguably ongoing given the U.S. naval blockade still in effect against Venezuelan oil tankers and continuing threats of further military force against Venezuela’s government. These latter actions are not related to any law enforcement purpose.
3. Does the use of military force need to be consistent with U.S. international legal obligations?
Yes. This is an important limitation on the use of military force, whether authorized by Congress or not. The United States has ratified the UN Charter (which it also helped to draft and negotiate), making it the “supreme Law of the Land” under the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution. Thus, whether acting under Article I or Article II authority, the United States must comply with the UN Charter as a domestic law matter (in addition to the importance of meeting its obligations as an international law matter, which is discussed by two of us along with Mike Schmitt here).
Article 2(4) of the UN Charter prohibits the use of force “against the territorial integrity or political independence of any state,” except if authorized by the UN Security Council (clearly not applicable here) or in self-defense as enshrined in Art. 51 of the UN Charter and customary international law. There is no plausible self-defense rationale for Operation Absolute Resolve, and to our knowledge none has been given by the Administration. (It is also important that under international law, even if the United States acts in self-defense, the U.S. response must be necessary and proportionate, though analysis of those requirements is not pertinent where there is no viable underlying self-defense claim).
Finally, as we have previously explained, “the president is charged in Article II of the Constitution to “take care” that the laws are faithfully executed.” This includes the U.N. Charter obligations described above.
As supreme Law of the Land, it would require an act of Congress to supersede the UN Charter (the so-called “last in time rule”). In other words, it is Congress’ prerogative. The President cannot do so alone.
[For more on this issue, see Ryan Goodman, Maduro Capture Operation and the President’s Duty to Faithfully Execute U.N. Charter.]
4. Hasn’t the President used force to seize a foreign president before without congressional authorization?
Yes, but that does not make it lawful, and there are also meaningful differences here. In 1989, President H.W. Bush ordered a military operation to capture General Manual Noriega, then the military dictator of Panama. Among other stated rationales, President George HW Bush emphasized that a primary purpose of the operation was protection of U.S. nationals following forces under Noriega’s command having “killed an unarmed American serviceman; wounded another; arrested and brutally beat a third American serviceman; and then brutally interrogated his wife, threatening her with sexual abuse.” Secretary of State James A. Baker also stated, “We received an intelligence report that General Noriega was considering launching an urban commando attack on American citizens in a residential neighborhood.” As the War Powers Resolution report to Congress said at the time: “The deployment of U.S. Forces… was necessary to protect American lives in imminent danger…”. While some have criticized these rationales as a pretext for action in Panama, they did not exist at all in Venezuela.
Operation Absolute Resolve was not intended to rescue or protect U.S. nationals in imminent peril, which was one of the primary stated goals of the Panama operation that removed Noriega from power. It was aimed at removing the Head of State (even if doing so also had a law enforcement purpose of bringing Maduro and his wife to the United States to stand trial on federal drug trafficking and weapons possession charges).
Panama, on the other hand, was understood by the Executive Branch as “responding in self-defense to an imminent threat to U.S. lives when it took military action in Panama,” according to the Office of Legal Counsel. (The OLC has also emphasized that the action was justified by the United States as a necessary and proportional action in self-defense under the U.N. Charter.)
5. What can Congress do if it disagrees with the president’s decision to use military force unilaterally?
We described a range of measures Congress can take in our earlier Q&A:
Congress has a number of tools at its disposal to constrain the president’s ability to use force unilaterally. Even in the OLC’s view, the president’s ability to use force without congressional authority can be checked if Congress decides to impose restrictions. While past attorneys general and the OLC have determined the president has the power to use military force abroad to protect important national interests and below the threshold of “war” in the constitutional sense, as discussed above, “[t]his independent authority of the President … exists at least insofar as Congress has not specifically restricted it,” the OLC wrote in 2011.
Among the options available, use of Congress’ “power of the purse” is the most potent and likely the clearest mechanism:
Congress’ appropriations power is one of the most potent tools to restrict presidential action. In 2018, the OLC opined that the significant powers vested in Congress by the Constitution “ensure that the use of force ‘cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action.’ … These powers further oblige the President to seek congressional approval prior to contemplating military action that would bring the Nation into a war.”
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It is precisely this type of action — the cutting off of funds for specific uses of force, which relies on Congress’ constitutional appropriations power — that would put Congress on its strongest footing to assert authority over the use of force abroad, and would put the president’s authority at what the Supreme Court has described as its “lowest ebb.” The clear intent of this proposed amendment is to prevent the executive branch from drawing the United States into a war without a congressional vote to specifically authorize it, which is particularly important given that senior Trump administration officials are considering justifying a use of force against Iran on purported congressional authorization in the 2001 AUMF.
Finally, an amendment like this could be passed even after an initial use of force, making clear the president does not have authority to continue using force absent congressional authorization.
Congress has all of these options at its disposal today. A bipartisan, privileged measure pursuant to the War Powers Resolution will likely come for a vote as soon as this week.
