How Presidential War Powers Work Without Congressional Approval

Last updated 2 weeks ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

On January 3, 2026, more than 150 U.S. military aircraft descended on Caracas. Delta Force commandos rappelled from helicopters under fire from Venezuelan air defenses. By dawn, they had seized President Nicolás Maduro and his wife, transferred them to a U.S. aircraft carrier, and eventually delivered them to a Manhattan courtroom to face drug trafficking charges. The operation killed approximately 75 people, including civilians. Congress learned about it from news reports.

Five days later, the Senate voted 52-47 to advance a resolution that would prevent President Trump from taking further military action in Venezuela without congressional approval. Five Republicans broke ranks to join all Democrats. Trump responded by calling them traitors who “should never be elected to office again” and declaring the War Powers Act itself unconstitutional.

The Constitution Says Congress Declares War. Presidents Do It Anyway.

Article I of the Constitution gives Congress the power to declare war. Article II makes the president commander-in-chief of the armed forces. These two provisions have been fighting each other for 237 years.

The people who wrote the Constitution initially proposed giving Congress the power to “make” war—a formulation that would have put the legislative branch firmly in control of initiating hostilities. They changed it to “declare” war, apparently to allow presidents to respond to sudden attacks without waiting for Congress to convene. That small edit created a gap wide enough to drive 150 aircraft through.

Presidents have interpreted their commander-in-chief authority as permission to launch operations lasting months or years, against countries that haven’t attacked us, without asking Congress for anything. The legal theory goes like this: the commander-in-chief clause gives the president built-in power to use armed forces when the president perceives a threat to national security or American interests. Congress can fund the armed services or not, but it can’t tell the president how to use troops once they exist.

Congress Tried to Fix This in 1973. It Didn’t Work.

After Vietnam dragged on for years based on increasingly dubious legal justifications, Congress passed the War Powers Resolution over President Nixon’s veto. The law seemed clear: presidents must notify Congress within 48 hours of introducing armed forces into hostilities. Those forces must be withdrawn within 60 days unless Congress authorizes their continued presence.

In practice, the resolution has proven almost completely ineffective. Presidents have developed multiple strategies to avoid compliance.

The simplest: claim the operation doesn’t constitute “hostilities.” When Obama conducted a 78-day bombing campaign in Libya in 2011, his administration argued it didn’t trigger the War Powers Resolution. The U.S. was only providing “supporting” air operations, not engaged in sustained combat. Congress failed to authorize the campaign. The House voted 295-232 against authorizing the intervention. The bombing continued.

Another approach: call operations law enforcement or counterterrorism instead. Each label comes with its own legal framework that supposedly exempts the action from War Powers Resolution requirements.

The Trump administration has taken this to its logical conclusion with Venezuela. By framing Maduro’s seizure as executing an arrest warrant rather than conducting an invasion, officials argue the War Powers Resolution doesn’t apply at all. Never mind that the “arrest” involved more aircraft than some countries’ entire air forces and resulted in 75 deaths. It’s law enforcement, they say. With helicopter gunships.

Between 1973 and 2012, courts decided eight cases involving the War Powers Resolution. In every single one, they found a reason not to rule on whether the law had been violated. Usually they determined that the people suing didn’t have the right to challenge it. The law sounds strong but presidents ignore it anyway.

Or Use an Old Authorization Nobody Remembers Passing

Here’s a simpler path to war without congressional approval: use an authorization Congress passed decades ago for a completely different conflict.

Presidents have used the 2001 Authorization for Use of Military Force, passed three days after 9/11, to justify operations in at least seven countries against dozens of organizations, many of which didn’t exist in 2001. It gave President Bush authority to use “all necessary and appropriate force” against those responsible for the attacks—specifically Al Qaeda and anyone harboring them.

The authorization doesn’t expire. It doesn’t require demonstrating any connection between a current target and the 9/11 attacks beyond asserting that one exists. Presidents from both parties have stretched its language to cover actions against groups that are enemies of Al Qaeda, or that occupy territory once controlled by groups affiliated with Al Qaeda, or that share ideological similarities with organizations that splintered from Al Qaeda’s philosophical descendants.

The 2002 Iraq War authorization remains on the books too, available for any president who wants to claim it justifies action in Iraq or against Iraqi-linked groups or in the general vicinity of Iraq. Both parties have proposed repealing them, but neither votes to do it.

The result: presidents operate in a legal environment where they can claim congressional authorization for almost any action. They invoke authorizations passed for different wars against different enemies in different decades. And if those don’t fit, there’s always the commander-in-chief clause.

The Venezuela Operation: Law Enforcement With Attack Helicopters

The details of the January 3 raid matter because they expose how far the “law enforcement” characterization can stretch.

More than 150 aircraft participated in a coordinated nighttime assault on Venezuela’s capital. Delta Force—an elite special operations unit trained for direct-action missions, not arrests—conducted the raid. A Chinook helicopter carrying the assault team took fire from Venezuelan air defenses. U.S. forces responded with suppressive fire. Approximately 75 people died, including civilians and members of Maduro’s security detail.

This was not a couple of FBI agents knocking on a door with a warrant.

But because Maduro was indicted in 2020 on narcotics trafficking charges, the administration can frame his seizure as executing an arrest warrant. As Senator Tim Kaine explained, the theory appears to be that when the Justice Department obtains an indictment and issues an arrest warrant, the executive can dispatch troops anywhere in the world to seize the target without triggering war powers restrictions.

Think about the implications. The U.S. indicts foreign nationals regularly—for cybercrimes, sanctions violations, drug trafficking, terrorism-related offenses. If each indictment becomes authorization for a raid to seize the defendant, presidential war powers become unlimited. Any foreign leader the Justice Department can convince a grand jury to indict becomes a legitimate target. The action to capture them isn’t war—it’s law enforcement.

The administration cites precedent: President George H.W. Bush’s 1989 invasion of Panama to capture Manuel Noriega, who had also been indicted on drug charges. Courts upheld Noriega’s subsequent conviction despite challenges that his seizure violated international law. They applied a legal rule that says courts can prosecute people even if they were captured illegally.

So there’s your precedent: if you can indict them, you can invade to get them. Courts will prosecute them anyway. The action’s legality under international law doesn’t affect the criminal case’s validity.

Trump Says the War Powers Act Is Unconstitutional. He’s Not Entirely Wrong.

After the Senate vote, Trump posted on Truth Social: “The War Powers Act is Unconstitutional, totally violating Article II of the Constitution, as all Presidents, and their Departments of Justice, have determined before me.”

This overstates the case—courts have never ruled the Act unconstitutional because they’ve never ruled on it at all. But Trump’s broader point reflects a real constitutional ambiguity that has never been resolved.

Every president since 1973 has questioned the War Powers Resolution’s constitutionality, usually in signing statements or legal opinions that preserve executive branch claims to unrestricted commander-in-chief authority. The argument goes: Congress can declare war and fund the armed services, but it cannot micromanage tactical and strategic decisions about how to employ troops. Requiring withdrawal within 60 days, the theory holds, impermissibly restricts constitutional authority to direct operations.

Courts have consistently refused to resolve this question. They cite lack of standing, refusal to decide disputes between branches of government, or that the case isn’t ready to be decided yet. These legal doctrines allow judges to avoid deciding cases that would force them to referee disputes between the political branches. The result is that the War Powers Resolution exists in constitutional limbo: neither clearly valid nor clearly invalid, enforceable in theory but never enforced in practice.

Senator Lindsey Graham’s statement after the Senate vote captures the maximalist version of this position: “The War Powers Act of 1973 is patently unconstitutional and must give way to delegated powers of the Constitution itself, designating the President as the sole Commander in Chief of our armed forces under Article II.” Graham noted that presidents have taken “over 130 military actions” without congressional authorization throughout U.S. history. “None have been stopped by the U.S. Supreme Court.”

That last point is the only one that matters. The Supreme Court has never stopped a president from conducting an operation. Not once. Whatever the Constitution says about congressional war powers, the practical reality is that presidents can do what they want. Either Congress cuts off funding or voters punish them for it.

Five Republicans Broke Ranks. It Won’t Matter.

The Senate’s 52-47 vote advancing the Venezuela war powers resolution represented a rare bipartisan rebuke of a president from his own party. Five Republicans joined all Democrats: Rand Paul of Kentucky, Susan Collins of Maine, Josh Hawley of Missouri, Lisa Murkowski of Alaska, and Todd Young of Indiana.

Their reasoning varied. Hawley framed it as constitutional: “My read of the Constitution is that if the President feels the need to put boots on the ground there in the future, Congress would need to vote on it.” Paul emphasized the Framers’ intent: “The Constitution is clear: Only Congress can declare war. The power to declare war was too important to be left to the confidence of one man.” Collins supported the initial raid to capture Maduro but opposed committing additional troops without congressional authorization.

Trump’s response was predictable. He declared that the five senators “should never be elected to office again” and accused them of “greatly hamper[ing] American Self Defense and National Security, impeding the President’s Authority as Commander in Chief.”

But the resolution faces insurmountable obstacles. Even if the Senate passes it, the Republican-controlled House seems unlikely to follow. If both chambers somehow approved it, Trump would veto it. Overriding that veto would require two-thirds majorities in both chambers—a threshold that appears impossible. Only five of 53 Republican senators supported even advancing the measure for debate.

The vote’s purpose was to create a record. To force senators to take a public position on whether the executive can unilaterally conduct operations in foreign countries. To establish that at least some Republicans have concerns about unchecked executive war-making, even when their own party controls the White House.

This Violates International Law Too. Nobody Cares.

The UN Charter, which the United States ratified and is bound by as a treaty obligation, prohibits states from using armed forces against other nations’ territorial integrity. Exceptions exist only for self-defense against armed attack or with Security Council authorization.

Venezuela did not attack the United States. The Security Council did not authorize action. The operation violated international law as clearly as any action can.

The “law enforcement” characterization doesn’t help. International law does not recognize extraterritorial enforcement of domestic criminal law through armed means as an exception to the prohibition on the use of force. You can’t invade a country to arrest someone, even if they’re indicted in your courts.

An emergency Security Council meeting was convened. Delegates expressed alarm. The overwhelming majority of UN members condemned the unilateral American action and the precedent it sets.

None of this will have any practical consequence for the United States. International law is enforced by the same mechanism as the War Powers Resolution: voluntary compliance by powerful nations, which can decline to comply whenever they find it inconvenient.

But the international dimension adds weight to congressional concerns about unchecked executive war-making. If the United States can conduct operations against sovereign nations to enforce domestic criminal law, other powerful nations can justify similar actions based on their legal systems. China could invade Taiwan to arrest “separatists” indicted in Chinese courts. Russia could conduct raids in NATO countries to seize dissidents charged under Russian law.

The post-World War II international order was built on the principle that nations don’t get to invade each other unilaterally, even when they have good reasons. The Venezuela raid doesn’t challenge congressional authority alone—it challenges the entire framework of international law that the United States spent decades establishing.

Expanding Presidential Authority Beyond Venezuela

Beginning in September 2025, the administration conducted lethal strikes against suspected drug trafficking vessels in international waters in the Caribbean and Pacific. Officials claimed authority under existing terrorism-related authorizations. These strikes reportedly killed at least 115 people. No congressional authorization. No debate about whether suspected drug traffickers constitute legitimate targets.

On January 9, 2026, Trump announced the administration would begin “hitting land” in actions against drug cartels in Mexico and other countries. The theory appears to be that drug trafficking constitutes a national security threat sufficient to justify armed action. Existing counterterrorism authorizations can be stretched to cover it.

Then there’s Greenland. After Trump suggested that acquiring Greenland was a national security priority and refused to rule out armed intervention, Senator Ruben Gallego introduced an amendment to block funding for any action against the Danish territory. Denmark—a NATO ally—responded by warning it would “shoot first, ask questions later” if the U.S. attempted such a move. Such an attack would end the NATO alliance.

This is where unchecked presidential war powers lead: to a situation where the United States might find itself in conflict with a NATO ally. The executive decided acquiring Arctic territory was strategically important. No institutional mechanism exists to stop him.

Why Courts Won’t Save Us

You might wonder why courts don’t simply rule on whether these operations violate the Constitution or the War Powers Resolution. The answer reveals a fundamental limitation of judicial power.

Courts can only decide cases brought by plaintiffs with legal standing—a concrete injury that the court can remedy. When presidents conduct operations, who has standing to challenge them? Not members of Congress, courts have ruled, because their injury is institutional rather than personal. Not taxpayers, because their injury is too generalized. Not foreign nationals harmed by the actions, because they lack sufficient connection to U.S. jurisdiction.

Even when courts find plaintiffs with standing, they often invoke refusal to decide disputes between branches of government. War powers disputes fit this category perfectly. Courts are reluctant to second-guess presidential decisions, particularly when actions are ongoing. Judicial intervention might endanger troops in the field.

The result is that courts have decided eight War Powers Resolution cases since 1973. In every single one they found a reason not to rule on the merits. The resolution remains untested. Presidential war powers remain effectively unlimited by judicial review.

This isn’t a bug in the system. It’s a feature. The people who wrote the Constitution designed it to resolve disputes between the political branches through political mechanisms—elections, appropriations, impeachment—not judicial intervention. Courts have taken that design seriously, perhaps too seriously. They refuse to enforce even clear statutory limits on presidential authority.

What Congress Could Do But Won’t

Congress retains one power that could genuinely constrain presidential war-making: the power to control spending. The Constitution gives Congress exclusive authority to appropriate funds. No operation can continue without funding.

In theory, Congress could pass appropriations bills that specifically prohibit funding for operations in Venezuela, or against Greenland, or for drug interdiction strikes in international waters. These restrictions would be enforceable because they control the flow of money, not tactical decisions.

In practice, Congress almost never does this. Cutting off funding for ongoing actions is politically toxic. It allows opponents to claim you’re abandoning troops in the field or undermining national security. It requires sustained congressional unity that rarely exists, particularly when the executive’s party controls even one chamber.

Congress could also repeal the 2001 and 2002 AUMFs, eliminating the legal cover presidents use to justify actions under decades-old authorizations. Both parties have proposed repealing them, but neither votes to do it. Repealing the authorizations without replacing them would require Congress to vote on specific operations—votes that members would rather avoid.

The war powers resolution advancing through the Senate demonstrates this dynamic perfectly. It will likely pass the Senate, fail in the House, and even if it somehow passed both chambers, Trump would veto it. Congress couldn’t override the veto. Everyone involved knows this. The vote’s purpose is to create political cover—to allow members to say they opposed unchecked executive war-making without constraining it.

The Precedent This Sets

Future presidents will cite the Venezuela raid as precedent. If Trump can conduct a raid in a foreign capital to seize an indicted leader without congressional authorization, and Congress fails to stop him or impose consequences, then that becomes the new baseline for presidential authority.

The next president—whether in 2029 or later—will face a situation where action seems necessary or politically advantageous. Their lawyers will research precedents. They’ll find Panama in 1989, Kosovo in 1999, Libya in 2011, and Venezuela in 2026. They’ll note that in each case, presidents acted unilaterally, characterized the action as something other than war, and faced no meaningful consequences.

The theory will expand. If drug trafficking justifies operations, what about cyberattacks? Human rights abuses? Election interference? Each expansion of presidential war powers creates precedent for the next expansion. Courts consistently refuse to draw lines.

The Constitution’s rules gradually stop being followed through incremental expansions that each seem defensible in isolation but collectively transform the system. The people who wrote the Constitution designed a government where decisions about war required deliberation by multiple institutions. We’ve evolved into a system where one person can order operations anywhere in the world. The only real constraint is whether they think they can get away with it politically.

How Presidential War Powers Expanded Without Congressional Approval

The Venezuela raid and the failed congressional response illuminate a fundamental truth about how American government works in 2026: constitutional text matters less than institutional will to enforce it.

Article I gives Congress the power to declare war. Article II makes the executive commander-in-chief. These provisions have been in tension since 1789. For most of American history, that tension was resolved through political negotiation. Presidents sought congressional authorization for major commitments. Congress generally provided it when presidents made the case.

That system broke down during Vietnam. Presidents committed hundreds of thousands of troops to a years-long war based on a congressional resolution that many members later claimed they’d been misled into supporting. Congress passed the War Powers Resolution to fix this. It didn’t work.

Now we have a system where presidents claim built-in authority to conduct operations based on their role as commander-in-chief. Courts refuse to adjudicate disputes about war powers. Congress lacks the political will to use its appropriations authority to constrain executive action. The constitutional design contemplated that each branch would try to protect its own power against the others.

Instead, we have a Congress that prefers to avoid taking clear positions on operations. We have a judiciary that declines to enforce statutory limits on presidential war-making. We have presidents who have learned that they can conduct actions without authorization and face no consequences beyond political criticism that their supporters will dismiss as partisan.

The question isn’t whether this violates the Constitution’s original design. It clearly does. The question is whether anyone with the power to do something about it cares enough to act. Based on the Venezuela precedent, the answer appears to be no.

Five Republican senators voted to advance a resolution that will fail. That’s the extent of institutional resistance to a raid that killed 75 people in a foreign capital to seize a leader who hadn’t attacked the United States. If that doesn’t trigger meaningful congressional action to reclaim war powers, nothing will.

Presidential war powers in 2026 work like this: presidents do what they want, characterize it as something other than war, cite precedents from previous presidents who did the same thing, and wait to see if anyone stops them. Nobody does. The system continues. The precedents accumulate. The gap between constitutional text and constitutional practice grows wider.

And the next time a president wants to conduct an action without congressional approval, they’ll have one more precedent to cite.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.