General Discussion

of the U.S. Constitution and international law. Article I, section 8 of the United States Constitution explicitly reserves to Congress the power to declare war, which over time has meant that Congress must authorize the use of military force. The President serves as Commander-in-Chief, which authorizes him to command the use of force when authorized by Congress and in cases of actual self-defense. Because there has been no such authorization to use force against Venezuela or against ships operating in the area (or any plausible threats justifying self-defense), the President’s military actions against the Venezuelan vessels and their crews cannot be justified as an exercise of the President’s power to use force authorized by Congress.

Nor is it a lawful use of force carried out under the President’s inherent powers as Commander-in-Chief. Under the 1973 War Powers Resolution, the President may introduce U.S. armed forces into hostilities only when specifically authorized by Congress or in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The recent attacks on Venezuelan vessels and crew were not authorized by Congress and were not in response to any such attack on the United States, its territories, possessions or armed forces. Rather, on the facts as they have been presented by the President and the press, these boats were targeted based on a purported justification that drug trafficking presents a broad threat to national security, not that the United States or U.S. forces were under threat of “attack.”>