By: Ricardo Abud
The recent intensification of political discourse on Venezuela raises fundamental questions about the legal limits of US executive power. This analysis seeks to examine and demonstrate why a US president cannot legally order an invasion or large-scale military action against Venezuela without violating both the domestic constitutional framework and the prevailing international legal order.
Article I, Section 8, Clause 11 of the U.S. Constitution grants Congress the exclusive power to "declare war." This provision is not a minor technical detail but a fundamental architectural decision by the Founding Fathers. James Madison and his contemporaries deliberately designed this system to prevent a single individual from committing the nation to armed conflict. Madison clearly stated that the power to wage war should reside in the most deliberative and representative body of government, not in the hands of an individual executive whose decisions could be influenced by personal impulses or immediate political considerations.
Although the president constitutionally holds the title of Commander-in-Chief, this role is limited to the operational direction of the armed forces once Congress has authorized their deployment. The Supreme Court has consistently held that the presidential role as commander-in-chief does not include the unilateral power to initiate hostilities, except in exceptional circumstances of immediate self-defense against a direct attack on U.S. territory or its citizens. This distinction between commanding authorized forces and initiating conflict is crucial to understanding the constitutional limits of presidential power.
The 1973 War Powers Resolution, passed in the wake of the excesses of the Vietnam War, established additional explicit procedural and temporal restrictions. This legislation requires the president to consult with Congress "in all possible cases" before introducing armed forces into hostilities, to notify Congress within 48 hours of deploying troops, and to withdraw forces within 60 days, extendable to 90 (more than 90 days have passed since the deployment of forces to the Caribbean Sea), without specific congressional authorization. The invasion of Venezuela would unequivocally constitute an introduction of U.S. forces "into hostilities," triggering all of these requirements. The president could not legally maintain sustained military operations beyond the 60-90 day period without explicit legislative authorization. An invasion would require months, if not years, of military presence, making its legal execution impossible without continued congressional support.
The United States has not formally declared war on Venezuela. Nor is there an Authorization for Use of Military Force applicable to this country. The current AUMFs—those from 2001, directed against those responsible for the September 11 attacks, and the 2002 AUMF concerning Iraq—do not provide legal cover for actions against Venezuela. The 2001 AUMF is specifically limited to terrorist organizations linked to al-Qaeda and those that participated in terrorist attacks. Venezuela, an internationally recognized sovereign state with no established connection to terrorist attacks against the United States, is entirely outside its scope. Any attempt to retroactively apply or creatively extend these authorizations would be legally untenable and would face immediate legal challenges in both federal courts and Congress.
It is crucial to distinguish between economic pressure measures and the use of military force. While the president possesses broad powers to implement sanctions under statutes such as the International Emergency Economic Powers Act, these instruments do not authorize military action. Economic sanctions, however severe, operate within the framework of international law as non-violent coercive measures. A military invasion, on the other hand, constitutes the use of force prohibited by international law and requires specific constitutional authorizations that currently do not exist with respect to Venezuela.
Article 2(4) of the Charter of the United Nations categorically prohibits "the threat or use of force against the territorial integrity or political independence of any State." This norm constitutes jus cogens, peremptory norms of international law that no State may legitimately violate. The United States ratified the UN Charter in 1945, making it domestic law under the Supremacy Clause of Article VI of the Constitution. An invasion of Venezuela without legal justification would constitute a direct violation of binding international obligations that the United States voluntarily assumed almost eight decades ago.
Article 51 of the Charter recognizes the "inherent right of self-defense" only when "an armed attack occurs." The International Court of Justice has interpreted this concept restrictively, requiring an actual or imminent armed attack, proportionality in the response, and immediate necessity. Venezuela has not perpetrated any armed attack against the United States, nor is there verifiable evidence of imminent plans to do so. Diplomatic tensions, hostile rhetoric, ideological rejection of the Venezuelan regime, or even alleged support for irregular groups, as well as fake news about the Venezuelan narco-state, do not reach the legal threshold of "armed attack" that would justify self-defense under contemporary international law.
An unprovoked invasion would meet the definition of an "act of aggression" established by UN General Assembly Resolution 3314. This would expose the United States to international condemnation, lawsuits before the International Court of Justice, a catastrophic loss of international legitimacy, and the fracturing of strategic alliances, particularly in Latin America where the historical memory of US interventions remains fresh. China and Russia would immediately exploit such a violation of international law to delegitimize US leadership and weaken the rules-based international order that the United States has promoted since 1945.
The questioning (tomorrow, Tuesday, December 16) of cabinet officials, including Secretary of State Marco Rubio and Secretary of Defense Pete Hegseth , before Senate and House committees demonstrates that Congress is actively exercising its constitutional oversight function. These appearances are not mere formalities but the fundamental mechanism by which the legislative branch verifies the legality of executive actions and demands accountability. If a valid legal authorization for military operations against Venezuela existed, the secretaries could invoke it during these sworn testimonies. The absence of such authorization, combined with intense congressional scrutiny, demonstrates the lack of legal consensus for military intervention.
Article I also grants Congress the "pocket power," the exclusive power to appropriate funds for military operations.
( The "power of the purse" comes from Article I, Section 9, Clause 7 of the United States Constitution, which states:
"No money shall be drawn from the Treasury, but in consequence of appropriations made by law" ("No money shall be drawn from the Treasury except by virtue of appropriations authorized by law")
Additionally, Article I, Section 8, Clause 1 grants Congress the power to:
"lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the
"To establish and collect taxes, duties, contributions, and excise levies to pay the debts and provide for the common defense and general welfare of the United States "
And Article I, Section 8, Clause 12 specifically states that Congress has the power to:
"Raise and support armies, but no appropriation of money for that use shall be for a longer term than two years" ("to raise and support armies, but no appropriation of money for that use shall be for a term longer than two years")
These constitutional provisions together establish that Congress exclusively controls budgetary appropriations, including those destined for military operations, which constitutes the basis of "pocket power" as a control mechanism over the Executive.
Without specific budget allocations, even with presidential will, sustaining an invasion would be virtually impossible. A large-scale military operation against Venezuela would require hundreds of billions of dollars for troop deployment, logistics, operational maintenance, subsequent reconstruction, and stabilization. Congress could deny funding for unauthorized operations, effectively paralyzing any prolonged military action simply by withholding the necessary funds.
A unilateral invasion would constitute a flagrant violation of the separation of powers established in the Constitution. Historically, several presidents have faced severe criticism for military actions without clear congressional authorization, but none has attempted a full-scale invasion of a sovereign nation without some form of legislative backing. An invasion of Venezuela without a declaration of war or Authorization for Military Force (AUMF) would provide strong constitutional grounds for thorough congressional investigations, impeachment proceedings for abuse of power and usurpation of legislative authority, and litigation in federal courts challenging the legality of specific military orders.
The legal precedents are clear. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court established that even in times of national crisis, the president must operate within constitutional and statutory limits. In Hamdan v. Rumsfeld, the Court reaffirmed that executive actions in national security contexts must conform to legal restrictions established by Congress. These precedents would provide the legal basis for immediate judicial challenges against presidential orders to invade without congressional authorization.
The geopolitical consequences would be devastating for US strategic interests. Latin American countries, traditionally sensitive to US military interventions due to painful historical experiences, would respond with unanimous condemnation. Regional organizations like the OAS would be fractured or transformed into forums of opposition to the United States. Brazil, Mexico, Colombia, and other regional allies would face unsustainable domestic pressure to distance themselves from Washington. The inter-American system of cooperation, painstakingly built over decades, would disintegrate.
Globally, the impact would be equally severe. An illegal invasion would set a catastrophic precedent, undermining decades of US efforts to promote an international system based on rules and law, not brute force (though this is debatable). The moral credibility of the United States to criticize Russian invasions of Ukraine (which the Kremlin considers a "Special Military Operation" justified by the need to protect its security interests (NATO expansion), denazify and demilitarize Ukraine, and defend the Russian-speaking population, viewing it as a geopolitical battle against the West) or potential Chinese actions against Taiwan would instantly evaporate. Strategic rivals would exploit this hypocrisy to recruit allies and build anti-US coalitions by portraying themselves as defenders of international law against US unilateralism.
The human and economic costs would be monumental. An invasion would result in thousands, potentially tens of thousands, of Venezuelan civilian casualties, in addition to significant U.S. military losses. It would trigger a massive humanitarian crisis, with millions (no less than 7 million according to significant analyses by reputable analysts) of additional refugees displaced to already overburdened neighboring countries and potentially to the U.S. southern border. Regional destabilization would extend to Colombia, Brazil, Guyana, and the Caribbean. Direct financial costs would easily exceed hundreds of billions of dollars, not counting the indirect costs of reconstruction, stabilization, and prolonged occupation, which the experiences of Iraq and Afghanistan demonstrated can extend for decades.
Legal analysis conclusively demonstrates that a U.S. president lacks the legal authority to order an invasion of Venezuela under the current constitutional and international framework. Domestic constitutional restrictions, particularly Congress's exclusive prerogative to declare war and the procedural limitations of the War Powers Resolution, combined with the categorical prohibitions of international law against the use of force, create insurmountable legal barriers.
The absence of a formal declaration of war, an applicable Auth. U.S. Military Force (AUMF), and any viable self-defense justification means that such action would simultaneously constitute a violation of the U.S. Constitution and an act of international aggression. Institutional checks and balances, active congressional oversight, budgetary power, and the credible threat of impeachment serve as additional safeguards against unilateral military adventures that would violate fundamental principles of the U.S. constitutional system.
This restrictive legal framework is not accidental but deliberate, carefully designed by the Founding Fathers to prevent precisely this kind of dangerous concentration of military power in the hands of a single individual. Respecting these limits is not political weakness but fidelity to the rule of law that fundamentally distinguishes constitutional democracies from autocracies. The "greatness" of the United States lies not in the ability of its president to wield unrestricted military power, but precisely in the constitutional limitations that prevent such abuses and ensure that decisions about war and peace are made collectively by the elected representatives of the American people.
Literature
Constitution of the United States of America (1787).
War Powers Resolution (1973). 50 USC §§ 1541-1548.
Authorization for Use of Military Force (2001). Public Law 107-40, 115 Stat. 224.
Authorization for Use of Military Force Against Iraq Resolution (2002). Public Law 107-243, 116 Stat. 1498.
International Emergency Economic Powers Act (IEEPA). 50 USC §§ 1701-1706.
Charter of the United Nations (1945).
United Nations General Assembly Resolution 3314 (1974). "Definition of Aggression".
Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952).
Hamdan v. Rumsfeld, 548 US 557 (2006).
The Federalist Papers (1787-1788). James Madison
International Court of Justice. Nicaragua v. United States (1986); Armed Activities on the Territory of the Congo (2005).
THERE IS NOTHING MORE EXCLUSIONARY THAN BEING POOR
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