The Constitution and the Drug Boat Strikes

Since September, the U.S. military has conducted 22 strikes and killed 87 people in operations against Venezuelan drug-smuggling vessels. The Trump administration has labeled the drug traffickers as “foreign terrorist organizations” and justifies these attacks as measures of national self-defense. Just a few weeks ago, the USS Gerald R. Ford, the Navy’s most advanced aircraft carrier, arrived in the Caribbean Sea. The administration has promised that land attacks are next, and Venezuela has placed its military forces in a state of maximum alert. Warplanes from the carrier will likely be integral to expanded operations.

A critical question arises: Are the drug boat and land attacks legal?

The U.S. Constitution marked a dramatic departure from British and European practices related to war and foreign affairs. As constitutional scholar Louis Fisher has noted, in the 1780s “existing models of government in Europe placed the war power securely in the hands of the monarch.” The framers not only rejected monarchy but also structured power so that only Congress could commit the nation to armed conflict.

The Constitution delegates to Congress the power to declare war, commission privateers to prey on enemy shipping, enact rules concerning captures on land and water, raise armies, maintain a navy, create rules for the governing of the armed forces, and to call forth the militia.  The verdict of the Framers is clear: In a republican government, only the representatives of the people in the legislature should be able to send America’s sons and daughters into hostile situations.

The president is commander-in-chief of the armed forces, but this designation exists merely to preserve civilian control over the military. It is not a magic word that negates the Constitution’s enumeration of congressional powers over war.

The framers recognized that the president should have the discretion to repel sudden attacks. The debates in the Philadelphia Convention reveal that originally, Congress was vested with the power to “make” rather than “declare” war. Virginia’s James Madison and Massachusetts’ Elbridge Gerry suggested that current language to ensure the executive could act if a surprise attack was launched by an enemy nation.

The White House claims that it is simply defending the United States from sudden incursions by foreign drug traffickers. But illegal drugs have been smuggled into the country for decades. Perpetrators are subject to penalties in criminal law. Smuggling is a law enforcement issue and not a military issue. To the extent it creates such a problem that the military should have a role, Congress is in session and can make decisions about committing military resources.

There are rumblings in Congress about invoking the War Powers Resolution of 1973. The resolution was passed in the wake of the Vietnam War to limit the president’s discretionary use of military forces. At base, if the president introduces troops into hostilities, he must withdraw them within 60 days unless Congress approves continued U.S. involvement. The president may extend the deadline by 30 days if he believes the additional time is needed for the safety of American forces.

On Dec. 3, U.S. Sens. Tim Kaine (D-Va.), Rand Paul (R-Ky.) and Adam Schiff (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) filed a War Powers Resolution to block the use of the U.S. Armed Forces to engage in hostilities within or against Venezuela unless authorized by Congress. The recent killing of drug boat survivors by a second and unnecessary strike should cause lawmakers of all parties to consider the measure.

However, we must be careful in supporting invocation of the War Powers Resolution of 1973. Arguably, rather than confining the president’s power to constitutional limitations, the resolution recognizes the extraconstitutional authority of the president to unilaterally wage war for 90 days. In that length of time, the president can so embroil the United States in a conflict that Congress’ only option is recognition of a war instigated by the executive.

The drug boat strikes and presidential promises of land attacks should trouble Americans. Madison described war as “the true nurse of executive aggrandizement.” The administration’s aggression toward Venezuela—without congressional authorization—is the latest example of why we need to return to the Constitution’s conservative view of executive power.