By John Yoo
Sunday, January 4, 2026
The president unilaterally launches a lightning-fast
assault to overthrow a foreign dictator who harms Americans, oppresses his own
people, and continues to threaten our national security. Critics accuse the
president of violating the Constitution’s grant of power to Congress to declare
war.
That may describe President Donald Trump’s order to
execute the astounding snatch-and-grab of Nicolás Maduro, the leader of
Venezuela. But it also describes President Barack Obama’s 2011 campaign to
bring down the Libyan regime of Moammar Qaddafi. Or President Bill Clinton’s
2000 air war against Serbia, which stopped its invasion of Kosovo and led to
the overthrow and trial of Slobodan Milošević. Or, in the example most similar
to today’s, President George H. W. Bush’s 1989 decision to invade Panama, arrest
its military leader Manuel Noriega, and try him for drug-trafficking.
As in those past conflicts, President Trump’s toppling of
Maduro has triggered an avalanche of criticism from the congressional
opposition. Massachusetts Senator Elizabeth Warren called the attack
“unconstitutional” and a threat to drag the U.S. into further regional
conflicts. Vermont Senator Bernie Sanders (I., Vt.) condemned the action as
“reckless.” Senate Minority Leader Chuck Schumer of New York said he would push
for a vote on a resolution to limit further military action without explicit
authorization by Congress.
We should ask whether critics of President Trump today
maintained the same position on Libya, Serbia, and even Panama, or whether
their constitutional principles depend on the political party controlling the
White House. In all of these cases, presidents of both parties used force to
topple a dictator who posed a threat, in their judgment, to American national
security. They relied on their authority as commander in chief and president,
in whom Article II of the Constitution “vests” “the executive Power” of the
United States. Those who claim that these presidents must seek a congressional
permission slip misread the Constitution’s text, structure, and history. If
Congress believes a president has acted illegally, it has plenty of tools at
hand, including the power of the purse and, ultimately, impeachment.
Critics of President Trump have one thing right, however.
Last night’s attack made clear what the administration has refused to admit:
that the United States is at war with Venezuela. While the White House has
portrayed its monthslong campaign as a war against drug cartels,
drug-trafficking should remain a problem for law enforcement. Using force to
preemptively kill drug runners violates the rules that govern the criminal
justice system. The use of force can claim legality only if the United States
is at war with Caracas and the drug cartels act as an arm of the Venezuelan
government. Launching an overwhelming attack on the capital of the enemy and
arresting its head of state takes place only in war and, indeed, is something
that it appears only the United States can execute with its world-class
military. It is just as legal as the other escalatory steps that Trump has
taken in this war, such as shutting down Venezuelan airspace, imposing a naval
blockade, and destroying ground targets.
But because yesterday’s attack on Caracas confirms that
the United States is in a state of war with Venezuela does not mean that
Congress must consent before the warships moved onto station, the aircraft
launched, and the special forces hit the ground. The declare-war clause simply
does not convey that power to Congress, and critics must concede that
historical practice by presidents and Congress denies such an understanding.
When the Framers ratified the Constitution, they would
not have understood a declaration of war as necessary to initiate hostilities.
The Constitution took the phrase “declare war” from British constitutional
practice, which, as Blackstone’s Commentaries on the Laws of England (1765),
one of the leading authorities consulted by the Framers explains, was among the
powers held by the Crown. The British, and their colonial brethren, did not
understand declarations of war as serving the domestic function of
constitutional authorization but rather as defining the legal status of
hostilities under international law. In the one hundred years preceding the
Constitution, the British waged more than a dozen wars, but they declared war
only once before fighting began.
When declarations did appear, they usually came months or
years after the start of the conflict. Declarations served as formal notices to
other sovereigns of the legal status between countries at war and provided a
public recitation of grievances. This would have been familiar to the Founding
generation, which had fought a war in North America (the Seven Years’ War) well
before a formal declaration of war was issued. The Declaration of Independence
itself was a declaration of war — which was issued a year after fighting had
begun at Lexington and Concord.
Americans did not alter the British approach to
warmaking. In the initial burst of state constitution-making, the
revolutionaries rejected the British monarchy and experimented with weakening
the executive branch. But when the Framers wrote the Constitution eleven years
later, they restored an independent, unified chief executive with its own
powers, including the authority to wage war as commander in chief and chief
executive. In Federalist No. 74, Alexander Hamilton explained that “the
direction of war implies the direction of the common strength,” and that the
authority to direct and employ this strength is a fundamental aspect of the
executive power. The president should lead in wartime because, in Hamilton’s
words, he can act with “decision, activity, secrecy, and dispatch.” He
emphasized that “energy in the executive is a leading characteristic of good
government” and is essential for protecting the community against foreign
threats.
The constitutional structure confirms this understanding.
Article I, Section 10 declares: “No State shall, without the Consent of
Congress, . . . engage in War, unless actually invaded, or in such imminent
Danger as will not admit of delay.” The Framers knew exactly how to write a
text that requires Congress’s approval before military hostilities begin. They
even included an exception for sudden attacks that all scholars agree must
reside within the declare-war clause (even though it isn’t there). If the Framers
had really wanted Congress to control warmaking, they should have written, “The
President shall not, without the Consent of Congress, engage in War, unless the
United States is actually invaded or in such imminent Danger as will not admit
of delay.” But they did not. As Chief Justice Marshall observed in McCulloch
v. Maryland, identical words in the Constitution should carry the same
meaning, and different words must carry different meanings. By deliberately
distinguishing “declare” war from “engage,” the Framers created a system in
which Congress and the president wield distinct tools in war within a flexible,
political process.
The ratification debates further confirm this
understanding. At the Virginia ratifying convention, for example,
Anti-Federalist Patrick Henry warned that presidential command of the military
would invite reckless wars. Federalist George Nicholas replied that Congress’s
regulation and funding powers would provide Congress with a sufficient check.
James Madison further responded that liberty was preserved so long as “the
sword” and “the purse” rested in different hands — just as in Britain, where
the king commanded and Parliament funded. Even though Virginia narrowly
ratified the Constitution by 88–80, Madison never invoked the declare-war
clause as a check on presidential power.
History has fulfilled the Framers’ design. For more than
two centuries, neither presidents nor Congresses have required Congress to
declare a war before the president could fight it. The United States has used
force abroad more than a hundred times, but Congress has issued declarations
only five times: 1812, 1848, 1898, 1917, and 1941. In other conflicts, such as
in 1991, 2001, and 2002, Congress has passed authorizations to use military
force. In still others, presidents acted without any formal congressional
approval. Presidents have sent troops unilaterally to oppose the Russian
Revolution, chase Mexican rebels, defend South Korea, and topple regimes in
Panama, Serbia, and Libya.
Trump’s critics today would overthrow this long
historical practice of presidential initiative and congressional acquiescence.
From Jefferson’s naval expeditions to Lincoln’s conduct of the Civil War, from
Truman’s Korea to the long struggles of the Cold War, presidents have acted
with dispatch to the protect the nation while Congress has cooperated by
funding and raising the military. Rather than raise a military solely to defend
the homeland, Congress has created an expeditionary military designed to fight
offensive wars in other countries and placed no funding restrictions on using
it.
If leading Democrats had their way, Congress could
control tactics and strategy rather than the president. But Congress’s size and
deliberative structure make it too unwieldy for decisions requiring speed,
secrecy, and decisiveness. Its funding power instead provides a check right
after hostilities begin. Congress can reduce or cut off resources, shrink the
military, or halt supplies. It used these tools to end the Vietnam War and to
block James Polk’s attempt to occupy more of Mexico. If presidents lead the
nation into disasters, Congress can cut off funds, launch impeachments, or call
upon the voters to throw out the party in power. The Framers did not expect
Congress to authorize every use of force or to manage military campaigns. When
Congress chooses to declare war, fund conflicts, or do nothing, it is not
surrendering authority. It is exercising authority.
Presidents have not always judged wisely, and some wars
have proved costly mistakes. Trump’s decisive action may have removed one of
the leading threats to American national security in the Southern Hemisphere,
but the administration still faces the difficult challenges posed by the
transition of power. In Iraq, the Bush administration succeeded, after great
cost, in fostering a democracy. But Bush, Obama, and Biden failed disastrously
on the same score in Afghanistan. These victories and defeats do not mean the
Constitution has failed. The Framers gave the president and Congress powers
with which to cooperate or fight over control over war, and they trusted in
politics to resolve their disagreements. That system should stand us in good
stead now just as it has for two centuries.
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