U.S. Secretary of State Marco Rubio rejoined his former colleagues in the Senate Foreign Relations Committee (SFRC) on Jan. 28 to testify on the Trump administration’s military operations in and around Venezuela. As far back as September, when the administration began striking alleged drug boats in the Caribbean, lawmakers had called for Rubio to appear before Congress to account for the administration’s use-of-force policies. Their demand for a hearing reached a fever pitch after the administration bombed Venezuelan territory and captured Venezuelan President Nicolás Maduro on Jan. 3 — without prior congressional authorization or even notice.
The Senate’s hearing with Rubio, however, offered little solace to those concerned about the White House’s buildup of military assets in the Caribbean, killings at sea, and use of force against Venezuela. As outlined below, the key takeaways from the hearing are that the executive branch and its congressional allies believe the president can undertake bombings and ground operations at will, without meaningful constraints from Congress, domestic laws such as the War Powers Resolution, or international treaties that are part of U.S. law.
The Contested Separation of War Powers
Article I of the Constitution gives Congress the power to declare war, to create and fund the military, and to make rules for the government and regulation of the military. Article II vests executive power in the president and declares that the president shall be commander-in-chief of the military. These provisions were historically understood to give Congress the power to authorize offensive or protracted hostilities and the president a more limited power to defend against ongoing or imminent attacks. But the contours of this balance of power have blurred in recent decades, as executive branch officials under multiple administrations have asserted increasingly broad visions of presidential power. The hearing with Rubio highlighted how this trend has been exploited by the Trump administration.
Rubio and SFRC Chairman Jim Risch (R-ID) both argued that President Donald Trump’s uses of force in and around Venezuela fall within his Article II power. While Risch framed the Jan. 3 attack as a “law enforcement” operation, rather than a traditional military operation, Rubio made repeated reference to the president’s supposed power to use military force in defense of the “national interest.”
Rubio’s reference invoked the “national-interest theory,” an established but controversial and judicially untested articulation of the president’s authority to use force without prior congressional authorization. Under this theory — which has been used to justify congressionally unauthorized uses of force in Republican and Democratic administrations alike — the president may launch unilateral attacks to protect “vital national interests,” so long as those attacks and any anticipated response by the adversary are “limited in nature, scope, and duration” and do not amount to “war in the constitutional sense.” This theory, according to Rubio, could allow Trump to order further attacks against Venezuela. The same theory is apparently used by the administration to justify its military campaign against alleged drug boats, which Rubio suggested will continue in the Caribbean and East Pacific.
As for the War Powers Resolution, passed in 1973 to reassert Congress’ constitutional war powers, Rubio suggested that the law applies only to large-scale and lengthy military operations. Congress adopted the War Powers Resolution in response to revelations about President Richard Nixon’s bombing of Cambodia, which he had managed to conceal from lawmakers and the public. Nevertheless, responding to a question from Senator Chris Murphy (D-CT), Rubio asserted that the law’s reporting requirement for new “hostilities” is triggered by operations where the United States is “involved in a sustained way.” He then said that the law requires congressional authorization for using force once hostilities exceed 60 days.
These are not new interpretations of the War Powers Resolution, though they stand the law on its head. In 1973, Congress chose the word “hostilities” because it could encompass “a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.” The measure’s drafters thus set a low threshold for when the law would be triggered. They did not enact the War Powers Resolution as a standing authorization allowing presidents 60 days of hostilities against any country or group; instead, they set a 60-day limit for operations that are genuinely defensive in nature but that have not yet been authorized by Congress. Even under Rubio’s interpretation of the law, however, it is unclear why the administration’s protracted campaign against alleged drug boats — part of what Rubio said was “absolutely” a war against “narco-trafficking groups” — can continue without congressional authorization.
The most robust criticism of this interpretation of presidential power came from Senator Rand Paul (R-KY), who in recent months has led efforts to invoke the War Powers Resolution to rein in the administration’s uses of force in and around Venezuela. Paul criticized the incoherence of the national-interest theory, which simultaneously blesses unilateral combat operations that have the obvious potential to escalate while acknowledging that congressional authorization is necessary for large-scale and lengthy wars. According to Paul, this theory would allow the executive branch to launch an operation that, once the dust has settled and the casualties have been counted, would be considered a use of force of such scope and scale as to have required congressional authorization from the start. Paul also emphasized the absurdity of saying that an operation to bomb a foreign country and capture its head of state does not constitute “war in the constitutional sense,” pressing Rubio on whether he would view such an attack against the United States as an act of war.
Paul has not previously led efforts to strengthen the War Powers Resolution or contest the validity of the national-interest theory, though his recent engagement on these issues and return to sitting on SFRC may indicate a desire to do so in the future. The most comprehensive congressional war powers initiative to date, the National Security Powers Act, was introduced by Senators Murphy, Mike Lee (R-UT), and Bernie Sanders (I-VT) during the Biden administration. Though he sits on SFRC, Lee did not press Rubio on the constitutional balance of war powers.
Reliance on Dubious Precedents
Layered on top of Rubio and his congressional allies’ Article II arguments were references to supposed precedents that support capacious presidential war powers. Risch, for instance, opened the hearing with a description of President George H.W. Bush’s 1989 invasion of Panama. That invasion, like the Maduro operation, lacked congressional authorization. It also led to the capture of a Latin American head of state. But as I and others have discussed elsewhere, the Panama invasion was materially different from the Jan. 3 attack against Venezuela. Panama’s legislature had declared a “state of war” against the United States, following years of escalating tensions at U.S. bases in the Panama Canal Zone. The country’s security forces had also begun attacking U.S. servicemembers within its borders. In other words, it was at least plausible that there was an Article II basis for using some degree of military force in the country, even if the force the Bush administration used was widely considered to be disproportionate.
The other historical example Rubio relied on was President John F. Kennedy’s handling of the Cuban Missile Crisis, the 13-day military and political standoff precipitated by the Soviet Union’s positioning of nuclear missiles in Cuba. During that standoff, Kennedy imposed a blockade on Cuba that he referred to as a “quarantine,” sidestepping the fact that blockades had historically been understood as acts of war. In response to a question from Senator John Barrasso (R-WY), Rubio attempted the same move, clarifying that Trump’s blockade of Venezuela — which Trump has referred to as a “TOTAL AND COMPLETE BLOCKADE” — is actually a “quarantine.”
Furthermore, throughout the hearing Rubio insisted that the administration could continue using congressionally unauthorized force against Venezuela if that country allowed, as an example, Iran to establish a drone factory or base within its borders. The problem with Rubio’s supposed precedent, however, is that Congress actually debated and pre-authorized forcible responses to threats emanating from Cuba, weeks in advance of Kennedy’s blockade. Far from supporting broad articulations of presidential power, the Cuban Missile Crisis underscores the historical role and competence of Congress in matters of war.
Rubio and others’ reliance on these historical episodes should serve as a powerful caution against Congress sleeping on its constitutional prerogatives. Although the Supreme Court has said that a “systematic, unbroken” executive practice that is “long pursued to the knowledge of the Congress and never before questioned” can shift the balance of constitutional power, even a handful of misconstrued precedents can be wielded to degrade lawmakers’ authority.
The War That Is and Isn’t and the Alien Enemies Act
Although Rubio is a very able witness, he struggled with a line of questioning from Senator Tammy Duckworth (D-IL) that highlighted a tension in the administration’s war powers theories.
In March, Trump invoked the Alien Enemies Act of 1798, a law that the Supreme Court described as a “war power of the president” when it was last used for internment during World War II. By its terms, the Alien Enemies Act requires the United States to be in a declared war or to suffer an invasion or predatory incursion by a “foreign nation or government.” When Trump invoked the law to target Venezuelan immigrants, he claimed that the Venezuelan government had committed acts of warfare against the United States, operating through members of the Tren de Aragua gang. Duckworth noted that Rubio’s argument that there is no war with Venezuela stands at odds with Trump’s invocation of a wartime law against Venezuelan nationals less than a year ago — an invocation that the administration has already used to send Venezuelan immigrants to face torture in a notorious Salvadoran prison.
Throughout Duckworth’s questioning, Rubio maintained that the United States is not at war with Venezuela. Instead, Rubio asserted, the nation is at war with an assortment of criminal gangs. Specifically, Rubio said:
“No, we’re not in a state of war in Venezuela. . . . But let me be clear with you, what the president [in his Alien Enemies Act invocation] was talking about was these gangs and these narco-trafficking groups that are waging war on the United States. There’s no doubt these groups have waged war on the United States. For example, Tren de Aragua is not just a criminal gang presence in our street. It is a criminal group responsible, directly responsible, for narco-trafficking.”
Setting aside the question of whether Tren de Aragua has the capacity and command structure to engage in armed conflict (international legal experts have argued that it does not), a conflict with a nonstate actor is simply not enough to unlock the vast power of the Alien Enemies Act. That law, which allows the president to regulate, intern, and expel civilians of a hostile power, requires a “foreign nation or government” as the adversary.
Rubio’s comments are an important contribution to the growing list of intelligence assessments and official statements undercutting the factual basis for Trump’s Alien Enemies Act invocation.
Frustrating Transparency and Congressional Frustration
As noted above, lawmakers had been calling for Rubio to testify for months. At the hearing, Senator Tim Kaine (D-VA) emphasized that key materials relating to the administration’s uses of force are still being withheld from Congress or have been made available only at specific times and in classified settings that create significant barriers to review and debate. A wide range of lawmakers from both sides of the aisle criticized the administration’s lack of transparency and its refusal to consult with Congress on the use of force in and around Venezuela.
Rubio’s handling of these criticisms suggests that greater transparency and interbranch collaboration will not be forthcoming. Senator Chris Coons (D-DE) pressed Rubio on the administration’s failure to consult with Congress on the Maduro operation in advance. Rubio responded that the operation had not been authorized by the president and was not “in the realm of possible” until late December, days before Trump ordered boots on the ground. This uncertainty, he said, made the operation unworthy of congressional notification, even as the military undertook months of planning and rehearsal for the attack.
In response to a line of questioning from Senator John Curtis (R-UT), who politely noted that he and his colleagues had repeatedly requested and been denied briefings, Rubio said that an earlier SFRC hearing to discuss the use of force in and around Venezuela would have been “meaningless.” He argued that planning military operations falls within the purview of the Department of Defense, not the Department of State, and that he would not have been the appropriate official with whom to discuss Venezuela policy.
But the foreign affairs committees have jurisdiction over the decision to authorize force, even as the armed services committees have jurisdiction over the conduct of already-authorized campaigns. Moreover, Rubio, as Secretary of State (and acting National Security Advisor), would surely have participated in the administration’s decision-making around using force in Venezuela. In other words, SFRC would have been a jurisdictionally appropriate place to have a hearing on Venezuela policy, and Rubio would have been a substantively appropriate witness for such a hearing.
Rubio’s answers offer scant justification for the administration’s failure to provide legally required materials to Congress or to consult with lawmakers in advance of its uses of force in and around Venezuela. Equally concerning, Rubio’s rationale for withholding information could apply to any context in which the White House might want to use force in the future.
The Might-Makes-Right View of the United States and International Law
Very little time in the hearing was devoted to discussing international law. The United Nations Charter, which prohibits the threat or use of force, was not mentioned a single time — even though the United States ratified that treaty, making it a part of the “supreme Law of the Land” under the Constitution. Whither the rules-based international order? Or the part of the Constitution’s Supremacy Clause devoted to Senate-ratified treaties?
The most relevant discussion of the United States’s international obligations came by way of a question from Senator Pete Ricketts (R-NE), who noted that critics of the Maduro operation could argue that the attack degraded the international prohibition on the use of force and thus made it more likely that China would use force to seize Taiwan. Ricketts was dismissive of this line of criticism, suggesting to Rubio that Trump’s display of military might would deter Chinese aggression more than any international rule could. Rubio agreed, adding that China “doesn’t care about international law” but that its leadership was likely startled by the U.S. military “experience so clearly on display.”
Later in the hearing, Senator Brian Schatz (D-HI) asked about Trump’s newly established “Board of Peace” and whether the initiative is meant to replace the U.N. Rubio denied that ambition while criticizing the U.N. for serving “very little purpose” in managing modern conflicts.
Through a range of Senate-ratified treaties, the United States has been a key player in the post-World War II international order. Under the U.N. Charter, it is one of five permanent members of the U.N. Security Council, with veto power over that body’s resolutions. A U.S. judge has sat on the International Court of Justice — also created by the U.N. Charter — since that body’s inception. Cornerstone treaties from the 1949 Geneva Conventions to the Convention Against Torture were negotiated and ratified by the United States. The prospect of the United States withdrawing from this postwar order in pursuit of a new (or perhaps very old) might-makes-right vision of international power raises serious challenges, legal and otherwise, around matters of war and peace.
