In the early hours of January 3, as US forces captured Venezuelan President Nicolás Maduro, members of Congress learned not through a vote or debate, but after the fact. Weeks later, as news of US strikes on Iran began, members of Congress once again learned of the operation only while it was underway.
These events both transpired without congressional approval.
“I think this is tricky because Trump is not the first president to start armed hostilities without declaration of war,” Nicholas Stephanopoulos, a professor at the Harvard Law School, told BINJ.News.
His comments follow the ongoing debate over the recent presidential decrees without congressional authorization. While the debate is not new, the recent executive actions have sparked concerns about how far this authority extends.
“It’s plausible that what happened to Iran goes against the framer’s’ constitutional interpretation,” Stephanopoulos noted.
Under the Constitution, Congress is the only branch that can declare war, while the president serves as commander in chief under Article II. However, in recent decades presidents have been able to sidestep Congress by using their authority to deploy military troops without a declaration of war.
“When we went to Afghanistan, it was authorized by a statute, not a declaration of war. Congress has also let presidents get away with deploying military force unilaterally for short periods of time, as long as the president can cite a significant national interest that is supposedly served by the deployment,” Peter M. Shane, a constitutional law scholar specializing in separation of powers at NYU, said.
Since the founding of the United States, Congress and the president have formally declared war 11 times, according to congressional records. The US has not issued a formal declaration of war since World War II. But in modern practice, the US has shifted away from formal declarations and started using Authorizations for Use of Military Force, which allow presidents to conduct military operations without an official declaration of war. This means, along with the War Powers Resolution of 1973, presidents can deploy US armed forces for a limited time, 60 days, without authorization from Congress, and that is what President Trump recently did in Iran.
“What I would say is that Congress has been supine and not protective of its own constitutional authorities. Each of the elected branches has to worry that the other does not step on its constitutional toes, so to speak. But so far, Republicans have been unwilling to join the Democrats to leverage legislative prerogatives that might help keep the president in line,” Shane told BINJ.News.
This imbalance reflects a broader shift in the separation of powers. The executive jurisdiction has expanded while congressional checks have weakened. In a February Marist Poll, 78% of Americans believe that there is a serious threat to democracy, while 22% disagree.
“Congress is our national legislative assembly. For constitutional governance to work, we need Congress to be a functioning, coequal branch of government” Maya Sen, a professor of public policy at the Harvard Kennedy School said in an analysis published by that institution.
President Trump’s Reasoning for the Capture of Nicolas Maduro
President Trump has described the capture of Nicolas Maduro as a “law enforcement operation,” intending to bring him into the US to face existing federal charges.
Professor Saira Mohamed, in a critique for the University of California Berkeley Law School, conceded that the operation was properly executed in terms of bringing Nicolas Maduro and Cilia Flores into the country to face US federal court. However, she noted, the operation is subject to the rules of international law because it was a military operation against Venezuela.
“As a matter of international law, you definitely can’t justify abducting another country’s leader just because you decided to call it a law enforcement operation,” Stephanopoulos said
International law prohibits states from using military force against another state, except in self-defense, authorized by the UN Security Council. There was no authorization for the American military operation.
“Without a legal justification in self-defense or Security Council authorization, the operation was an unlawful use of force in violation of Article 2(4) of the Charter and customary international law,” Mohamed said.
The rule of international law prohibits the “law enforcement operation.” A state’s enforcement jurisdiction is limited to its own territory unless the other territory agrees.
“You can’t use law enforcement to bootstrap yourself to powers you don’t have” Stephanopoulos ended.
US Strikes on Iran
President Trump has utilized his authority under the War Powers Resolution and in the role of commander in chief, arguing that the strikes against Iran are imperative to the US national security and did not require congressional authorization.
The White House argued that the attacks were necessary to deter future nuclear attacks from Iran.
“If you want to lose sleep at night, consider that we do not have any well-established legal framework for dealing with decision-making about nuclear weapons,” Shane noted.
The decisions in question fall in a legal grey area, one that the framers never anticipated.
“I would say on one hand the founders did not anticipate modern political properties, they knew about agencies, but they would not anticipate the scope of government today, and the executive bureaucracy, ” Prof. Shane concluded.
Many Democrats have opposed President Trump’ s executive actions, calling for the 25th Amendment (which addresses issues related to presidential succession and disability) to be invoked, such as US Reps. Yassamin Ansari of Arizona and Melanie Stansbury of New Mexico. The call mirrors similar demands of former President Biden due to Biden’s “poor memory,” according to a 2024 report by Robert Hur, then a high-ranking US Department of Justice official and special counsel.
With Republicans controlling Congress, the call for the 25th Amendment is unlikely to happen.
What Will Happen Next?
President Trump’s 60-day emergency powers expired on May 1. Once that deadline was reached, Congress could have authorized the war or moved to block it, but President Trump’s administration has claimed the deadline does not apply due the previous ceasefire that “[paused or stopped the countdown clock]” said US Secretary of War Pete Hegseth.
The ceasefire was first announced on April 7, and President Trump says it is still in place despite the recent exchange of fire in the Strait of Hormuz.
In a May 1 letter, the White House notified Congress that hostilities with Iran have been “terminated,” despite ongoing presence of U.S. troops in the region.
It remains unclear whether Congress will accept this interpretation.
