Congress, the President, and the Drug Boats

 On September 2, the U.S. Navy struck a small boat off the coast of Trinidad with a GBU-69 laser-guided bomb, killing nine of the eleven people on board. Follow-on strikes with AGM-176 Griffin missiles, a little over thirty minutes later, killed the two apparent survivors and sank the wreckage.

This strike marked the beginning of the Trump Administration’s military campaign against alleged narco-terrorists. The boat hit on September 2 was believed to be smuggling drugs on behalf of drug cartels deemed to be foreign terrorist organizations by the Trump Administration. Since then, the military has conducted over 20 additional strikes on alleged drug-smuggling boats in the Caribbean and eastern Pacific, killing at least 87 people. The strikes are expected to continue. In an interview with Politico, Trump said, “we’re going to hit ‘em on land very soon too,” suggesting possible military action against drug cartels operating in Venezuela.

The follow-on boat strikes on September 2 raise serious legal questions and have prompted two congressional committees to investigate. Federal law and the Department of Defense Law of War Manual prohibit attacks on incapacitated or disabled enemy combatants, let alone criminals. If the reporting on the strike is accurate, the follow-up strikes were indefensible, according to Jack Goldsmith and Andrew McCarthy, among others. It is no wonder subsequent strikes have not included such follow-on attacks, even where there have been survivors. Many members of Congress still want more answers, and lawmakers are threatening to withhold portions of Defense Secretary Pete Hegseth’s travel budget if the full video is not disclosed.

A serious inquiry into the September 2 incident is welcome, but there are larger legal questions that should command no less attention. The Trump Administration’s military campaign against drug cartels without any meaningful input from Congress, let alone legislative authorization, poses serious constitutional problems. The Trump Administration’s claims that the military is responding to a genuine terrorist or other national security threat have yet to be substantiated beyond the President’s say-so, and some of the rationalizations defy common sense. The Administration avers it is seeking to protect the American people from the scourge of fentanyl, yet most of the boat strikes have been against targets ferrying cocaine and far from US shores. Destroying cocaine-laden boats from Colombia is no way to stop fentanyl overdoses in Appalachia.

As is so often the case today, Congress is AWOL, effectively allowing the Trump Administration to militarize American drug policy unilaterally. This was not the founders’ design.

The Constitution declares the President is the “commander-in-chief” of the armed forces, but does not vest all war-related powers in his hands. Whereas the British monarch had the power to both “make war” and “declare war,” the Constitution divides these powers between the executive and legislative branches. It is Congress, not the President, that has the power to “declare War.” The Constitution further grants Congress the power to “raise and support Armies,” to “make Rules for the Government and Regulation of the land and naval forces,” and to “provide for organizing, arming, and disciplining, the Militia.” It is further up to Congress, not the President, to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and to “make Rules concerning Captures on Land and Water.” In short, while the President has operational control of the military once called into action, the Constitution vests Congress with substantial authority over whether and how military force is deployed and for what purposes.

Although Congress has the sole power to declare war, a formal declaration has never been required before the making of war; at the founding, it was well recognized that war could, and often did, begin before a formal declaration was made. As Sir Robert Walpole, often characterized as Britain’s first Prime Minister, observed, “of late most Wars have been declar’d from the Mouths of Cannons, before any formal Declaration.” If the country were invaded or faced the threat of imminent attack, the President need not wait for legislative approval to ensure the defense of the nation. Nonetheless, as Blackstone explained, formal declarations served the important purpose of putting the world on notice that a given conflagration was part of a broader conflict, and not merely the action of rogue actors or privateers.

Those at the founding recognized the need for speed, decisiveness, and dispatch in military affairs, yet also did not want the President to have the unilateral authority to commit the nation to armed conflict. As Michael McConnell explains in The President Who Would Not Be King, “the weight of the early evidence” supports the interpretation that “congressional authorization is required before the President may employ the armed forces in offensive military operations that constitute acts of war.” While this was not a consensus view at the time, early practice largely conformed to this account. Although Congress had provided for a navy to defend against privateers and other threats to American vessels, President John Adams nonetheless sought legislative authorization to deploy naval forces against the French in the “Quasi-War” during his administration.

Over the past century, however, Presidents have taken greater liberties with the commander-in-chief power, deploying military forces for a wide range of purposes, including actions recognized as war in all but name. Sometimes these deployments have been pursuant to an “Authorization for the Use of Military Force” (AUMF), such as that which Congress passed in the wake of 9/11 to allow for military action against those nations and groups associated with the terrorist attack. In other cases, however, Presidents have acted unilaterally, such as when President Reagan ordered a brief invasion of Grenada to counter a military coup and restore democratic governance on the island.

Presidents of both parties have assumed the authority to direct military operations without legislative authorization. The Office of Legal Counsel (OLC) in the Department of Justice has generally approved such actions, reasoning that the deployment of military forces, even offensively, does not require prior congressional approval or a declaration of war, provided the operations are of insufficient “nature, scope and duration” to constitute an actual war. As Professor McConnell notes, OLC can now draw on a long history of such actions to justify its conclusions, but “has made little or no attempt to square” its conclusions “with constitutional text or early history.”

Whatever the founding-era understanding, Presidents have increasingly taken it upon themselves to deploy the nation’s military without seeking congressional authorization. This has placed the onus on Congress to police and constrain the President’s desire to project military force overseas. As my Civitas colleague John Yoo has argued, if Congress wishes to constrain a President’s military adventurism, it may use the power of the purse. The military that the President has at his disposal to deploy is a function of what Congress has authorized and funded. And if a President wants to use that military in ways Congress disapproves of, potentially blurring the line between waging war and preventing crime (such as drug smuggling), Congress can limit appropriations or enact other constraining legislation.

Congress sought to limit the President’s ability to push the nation into war without legislative approval by enacting the War Powers Resolution in 1973. Among other things, this law directs the President to inform Congress within 48 hours of deploying U.S. military forces into “hostilities” and “situations where imminent involvement in hostilities is clearly indicated by the circumstances,” unless the deployment is pursuant to legislative authorization (such as an AUMF). Once this notice is given, the War Powers Resolution provides that the President has 60 days to withdraw the military forces unless Congress has authorized the continued deployment.

While most Presidents have abided by the Resolutions notice requirement most of the time, compliance with the 60-day withdrawal requirement has been honored in the breach. Sometimes the executive branch has offered tortured explanations for its failure to comply, such as by arguing that actions in support of NATO operations or the deployment of air power without ground forces do not constitute covered “hostilities.” In other instances, no justification has been given for failing to withdraw forces or seek congressional authorization for continued operations.

The Trump Administration provided Congress with the required notice of its September 2 boat strike on September 4, noting “the potential for further such actions.” Despite these nods to legislative prerogatives, the Administration has yet to seek formal legislative authorization of continued military action against drug cartels, and the military strikes have continued for more than 60 days.

The OLC has determined that bomb and missile strikes against alleged drug boats and cartel members are not covered “hostilities” because U.S. service members are not in danger, according to press reports. (The relevant memos have not been released.) In effect, the Administration’s position seems to be that the War Powers Resolution is not really triggered so long as those targeted by the U.S. military cannot shoot back. This may seem like an absurd argument, but it is not a Trump Administration innovation. The Obama Administration used this precise rationale to justify continued air strikes on Libya for more than 60 days in 2011 without congressional authorization (although it is interesting to note that this argument was made by lawyers in the State Department and the White House, and was not embraced by OLC). Thus, the Trump Administration can argue, with some force, that it is acting in accordance with established practice to which Congress has acquiesced.

It may seem incongruous that the President may initiate a de facto war against drug cartels and their supporters without a Congressional declaration of war, but unless and until Congress reasserts its prerogatives, the commander in chief will dictate when and how U.S. military force is deployed. If legislative approval was necessary to authorize attacks on the Barbary pirates over two centuries ago, such approval should be required to assault the narco-pirates of today. But such constraints on military adventurism are not self-enforcing. Such constraints require legislative action. As with so many issues today, Congress is asleep at the switch, giving the President free rein. Lethargy in the legislature is no way to counter the executive's excess energy.

Jonathan H. Adler is the Tazewell Taylor Professor of Law and William H. Cabell Research Professor at the William & Mary Law School.