By Sarah Burns, Associate Professor of Political Science at Rochester Institute of Technology for The Conversation.
Americans woke up on January 3, 2025, to blaring headlines: “US CAPTURES MADURO, TRUMP SAYS,” declared The New York Times, using all capital letters. The United States had carried out a nighttime military raid in Venezuela that immediately raised questions of procedure and legality. Chief among them was the role that Congress had—or should have had—in the operation.
Politics editor Naomi Schalit interviewed political scientist Sarah Burns, author of the book “The Politics of War Powers” and an expert at the Rochester Institute of Technology about the historic fight between Congress and US presidents over who has the power to authorize military action.
Is this a war?
I wouldn’t call it a war. This is a regime change, and whether or not it has a positive impact in the United States, or in Venezuela, I think the probability of both things being true is very low.
How does Congress view its role in terms of military action initiated by the United States?
Congress has been, in my opinion, incredibly submissive. But that’s not just my word. That said, it is true that Congress — primarily in the House — recently attempted to pass a war powers bill, saying that President Donald Trump was not allowed to take any action against Venezuela, and that failed in very close votes.
So you see some effort on the part of Congress to assert itself in the area of war. But it failed mostly along partisan lines, with Democrats saying we really don’t want to go into Venezuela. We really don’t want this to happen. Republicans predominantly supported the president and whatever he would like to do. Moderate Republicans and Republicans who are in less safe districts were and are more likely to antagonize the president at least a little, but they are very few.
So there may be an institutional role for Congress, a constitutional role, a role that has been confirmed by legal opinion, but politics takes over in Congress when it comes to asserting its power in this area?
That’s a perfect way to say it. They have a legal, constitutional, I might even say moral responsibility to assert themselves as a branch, right? This is from Federalist 51, where James Madison says, “Ambition must be made to counteract ambition.” So it should be that, as a branch, they stand up against the president and say, “We have a role here.”
In the 1940s, presidential scholar Edward Corwin said that in the realm of foreign policy, it is an invitation for Congress and the president to fight. So it should be that Congress and the president face each other to affirm: “I rule.” “No, I’m in charge.” “No, I’m in charge,” in an effort to create a balance between the two branches and between the two things each does well. What is expected of Congress is slow deliberation and a variety of opinions. What you want from the president is energy and dispatch.
So, of course, if we have an attack like 9/11, you want the president to be able to act quickly. And, on the contrary, in situations like questions about what the United States is doing in Venezuela, slow deliberation is wanted because there is no emergency that requires energy, dispatch and speed. So the president shouldn’t be completely in charge here, and Congress should try very hard to contain him.
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What power does Congress have to contain him?
They have to pass laws. Right now they are not particularly prepared to pass laws, so in practice there is no very clear way to contain the president.
One of the things that members of Congress have tried to do several times, with very little positive impact, is to go to court and say, “Can you restrain the president?” And political scientist Jasmine Farrier has written that courts have regularly told members of Congress: “You have the power to stop the president, and you are ineffective at it. So if you want to stop the president, you shouldn’t come to us. You should work together to create legislation that stops the president.”
What would such legislation do? Cut money for troops? Is it moving your finger or is it something really concrete?
There are several different levels. Joint resolutions are a movement of fingers. They just say, “Wrong, Mr. President, don’t do that.” But they have no legal effect.
The War Powers Resolution, first passed in 1973, is a legitimate way to try to contain the president. Congress intended to tell presidents: “You cannot start one war and continue another war without our authorization.” But what they said instead was: “You could have a small war or a short war – 60 to 90 days – without our authorization, and then you have to tell us about it.” That simply told the presidents the opposite of what they intended. So President Barack Obama took advantage of that with the military commitment in Libya, as did Trump in his first administration.
This is not a partisan issue. It’s not Republican presidents who do it. It’s not Democratic presidents who do it. It’s every president since the War Powers Resolution was passed, and the only time Congress has withdrawn troops or money was in the Vietnam War.
Aside from that disastrous war, we haven’t seen Congress willing to take the politically negative side, which is taking money away from the troops. Because if you take money from them right now, they are going to be hurt.
What is the War Powers Resolution?
The War Powers Resolution of 1973, also known as the War Powers Act, was Congress—during the Vietnam War—finally saying to President Richard Nixon: “You have overstepped your bounds.” They had explicitly said in the law that you cannot enter Cambodia. And Nixon entered Cambodia.
So that was his way of trying to assert himself very aggressively; As I mentioned before, it didn’t work effectively. It worked to the extent that presidents do not unilaterally start large-scale wars, as World War II was on a large scale. But they do have these smaller stocks at different levels.
Then we get to 9/11 and we see the 2001 authorization for the use of military force and the 2002 authorization for the use of military force. The 2001 law authorized persecution of anyone in Al Qaeda and associated with 9/11. The 2002 authorization was directly related to Iraq, saying “There is a problem with Iraq, we have to do something.” Both were extremely vague and broad, and that’s why we’ve seen four presidents, including Trump, use the 2001 and 2002 authorizations to carry out all kinds of operations that had very little to do with Saddam Hussein or Al Qaeda.
In 2021, Senators Mike Lee, Bernie Sanders, and Chris Murphy collectively came together to try to create a national security document that would limit presidential unilateralism. It was a good effort by members of Congress of various ideological persuasions to try to restrain the president. It didn’t even happen more or less – it barely hit the ground.
Since then, we haven’t seen much effort from members of Congress. They have not really reasserted themselves since the Korean War, which began in 1950. It is very clear that the ambition is no longer to curb ambition as the founders intended.
When you woke up this morning and saw the news, what was your first thought?
Here we go again. This is not a Republican or Democratic issue. Many presidents have made this mistake, which is thinking that if this action is carried out on a smaller scale, a positive result will be obtained for the nation, for the region and for international stability. And that very rarely happens.
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