With the U.S. maritime bombing campaign against suspected drug boats and the Jan. 2-3 military incursion into Venezuela that resulted in the capture of its leader Nicolás Maduro and his wife Cilia Flores, the Trump administration is now involved in two sets of hostilities governed by the War Powers Resolution (WPR) in Latin America. In this essay, we explain the implications of these ongoing hostilities for both the legal requirement to terminate fighting not authorized by Congress, as well as the tools available to Congress to push back against uses of force it has not authorized.
Legal Background: The War Powers Resolution
The War Powers Resolution provides the statutory framework for the unilateral use of military force by a president, such as the ongoing maritime strikes and the U.S. operations in Venezuela. Congress enacted this law over President Richard Nixon’s veto in 1973 to reassert the body’s constitutional prerogatives with respect to war and peace. In essence, Congress sought to forestall any president from taking the country to war without congressional authorization or even without congressional awareness (as had allegedly been the case for aspects of the wars in South-East Asia, such as the incursion into Cambodia). Congress attempted to do this through a framework requiring transparency before forces are in harm’s way, and mechanisms for automatic termination of unilateral presidential uses of force absent specific congressional authorization.
Reporting: To this end, Section 4(a) of the Resolution establishes reporting requirements to prevent the president from taking the country to war in secret. In the absence of a declaration of war or other statutory authorization, the executive branch is subject to multi-tiered obligations to report to Congress within 48 hours of certain activities by U.S. armed forces.
First, under subsection 4(a)(1) the Executive must report when U.S. military forces are introduced into “hostilities” or introduced into “situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Such hostilities reports are the focus of this essay.
Second, even if U.S. forces are not engaging in hostilities, subsection 4(a)(2) requires the Executive to report the introduction of “combat equipped” forces into a country (the executive branch defines “combat-equipped” as forces equipped with crew-served weapons such as machine guns requiring more than one person to operate and mortars). The goal of this provision is essentially to avoid putting U.S. forces into a position that could lead to imminent hostilities without congressional awareness.
Third, pursuant to subsection 4(a)(3), the president must also report a substantial enlargement of such combat equipped forces in a country where such forces are already present.
Two mechanisms to terminate unilateral deployments into hostilities or imminent hostilities: Notably, under Section 5(b) of the 1973 Resolution, the submission of a report under the first of these scenarios — introduction of U.S. forces into hostilities or situations of imminent hostilities — starts a 60-day clock for the withdrawal of U.S. armed forces from such situations unless Congress declares war or otherwise enacts specific statutory authorization for the use of force. No further action needs to be taken by Congress for the termination to become effective (though in practice, presidents have found numerous ways to try to circumvent the termination requirement or argue its inapplicability).
When enacted, the War Powers Resolution provided a mechanism in section 5(c) for Congress to order the removal of U.S. forces from hostilities through a concurrent resolution—that is, a resolution passed by both houses of Congress but not presented to the president for his or her signature or veto. Particularly following the Supreme Court’s 1983 decision in INS v. Chadha that ruled unconstitutional the so-called legislative veto, section 5(c) is widely viewed as unconstitutional. Following Chadha, Congress enacted expedited procedures for joint resolutions requiring the removal of U.S. armed forces from hostilities, which does require presentment to the president.
As one of us previously wrote (with Stephen Pomper), one of the consequences of Chadha was to “encourage[] a lingering (and in our view incorrect) impression that other provisions of the War Powers Resolution are constitutionally infirm — an impression that the executive branch has sometimes encouraged.” It is to that issue that we now turn.
Constitutionality of the War Powers Resolution
Although it is sometimes asserted (including recently by Vice President J.D. Vance) that every presidential administration has claimed the War Powers Resolution is unconstitutional, that claim is inaccurate. (Charlie Savage recently wrote in the New York Times about the administration’s misleading claims on this front.)
Although it is true that prior to Chadha, the executive branch regarded the concurrent resolution mechanism for terminating introductions into hostilities as unconstitutional based on the Supreme Court’s analysis of the Presentment Clause (Article I § 7 of the Constitution), that is distinct from claims regarding the constitutionality of the resolution as a whole, or any of its other specific provisions. As the Department of Justice’s Office of Legal Counsel (OLC) noted in 1979, “the only provision that this Administration has suggested presents constitutional problems related to the right of Congress to act by concurrent resolution.”
Under administrations of both political parties, OLC has repeatedly accepted that other provisions of the resolution are constitutional at least on their face, including the reporting requirements, 60-day clock, and the revised joint resolution mechanism for withdrawing U.S. armed forces from hostilities. Harold Hongju Koh, Legal Adviser to the Department of State during the Obama administration, testified with reference to the War Powers Resolution that “[t]he Administration recognizes that Congress has powers to regulate and terminate uses of force.”
What’s more, in practice presidents have endeavored to comply with these requirements. First, all presidents since Ford have submitted the 48-hour reports described above. Second, while presidents have certainly stretched or narrowed their interpretations of the statute’s terms to avoid the termination requirement, they have attempted to make arguments under the law for why it does not constrain their activity in a given case, rather than arguing that the law itself is unconstitutional.
In our view, the constitutionality of the War Powers Resolution is on firm ground. Congress holds the preponderance of the war-making, and war-adjacent, powers in the Constitution. Moreover, Congress has since the founding regulated when and how the United States may use force abroad (from the late 1700s to the frameworks in place today that are the subject of this essay). In sum, both the text and historical and modern practice make the statute’s constitutionality clear.
Multiple Hostilities (and 60-Day Clocks Running) in Latin America
The first set of hostilities involves the administration’s campaign of lethal strikes against suspected drug ferrying boats in the Caribbean and eastern Pacific—Operation Southern Spear—in which the administration claims (erroneously) that it is involved in non-international armed conflicts against an unreleased list of 24 criminal gangs and drug cartels but, paradoxically, that it is not in “hostilities’ for WPR purposes (despite submitting a report implying that it was so involved 48 hours after the first Sept. 2 strike, as required by the WPR). These hostilities appear to be ongoing following 35 strikes and over 100 people killed. On Jan. 4, Secretary of State Rubio stated that “we continue to reserve the right to take strikes against drug boats that are bringing drugs towards the United States that are being operated by transnational criminal organizations.”
The other set of hostilities involves the administration’s unlawful use of force against Venezuela—Operation Absolute Resolve—including the seizure of its president and commander in chief, Nicolás Maduro, and his wife, Cilia Flores, in a military raid. That operation took place in the context of an immense military build-up in the region, continued threats of military force, and a naval blockade against U.S. sanctioned oil shipments from the country that remains ongoing.
Congress has already voted on a series of measures under the War Powers Resolution that would require President Trump to remove U.S. forces from hostilities related to the boat strikes as well as in or against Venezuela. Another such vote is expected this week in the Senate.
We now turn to explaining the two sets of hostilities, how each is governed by the War Powers Resolution, and what opportunities this creates for Congress.
The Maritime Strikes Termination Clock
Consistent with section 4(a)(1) of the War Powers Resolution, the White House reported the first maritime strike (which occurred on Sept. 2, 2025) to Congress in a Sept. 4 letter. This report triggered the start of the Resolution’s 60-day clock—which was due to expire on Nov. 3.
But as this deadline approached, the Trump administration shifted its view on whether these strikes constitute “hostilities” under the 1973 law. The head of the OLC reportedly informed a small group of lawmakers that the maritime strikes did not constitute “hostilities” despite having initially reported them under the law.
An anonymous senior administration official told the Washington Post that the War Powers Resolution doesn’t apply to the maritime strikes because, “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way.” According to this official, “[t]he operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel.” Thus, “the kinetic operations underway do not rise to the level of ‘hostilities,’” according to the administration.
Contrary to the administration’s arguments, the War Powers Resolution’s clock has been ticking since Sept. 4th of last year, and exceeded the 60 day deadline in early November. Based on the text, legislative history, and past executive branch practice, the better view is that airstrikes, even when U.S. armed forces are not exposed to significant risk, are hostilities under the Resolution.
As one of us (Finucane) has previously explained:
There are many flaws with the Trump administration’s reported interpretation of hostilities. As indicated in the legislative history, Congress understood the term “hostilities” to apply broadly, more broadly than “armed conflict.” The Obama administration’s prior attempt to restrictively interpret the term garnered strong bipartisan congressional opposition.
Moreover, the War Powers Resolution was enacted not only against the general backdrop of the Vietnam War, but more specifically President Nixon’s legally contested aerial bombing of Cambodia in 1973 (Operation Freedom Deal) which Congress sought to terminate through funding restrictions. As Representative Zablocki (a key architect of the War Powers Resolution) explained, “[w]hat really helped the war powers legislation was the arrogance of the executive branch in saying ‘We’ll bomb Cambodia as long as we desire, regardless of what Congress says.’” It thus beggars belief that Congress somehow intended the War Powers Resolution not to cover U.S. airstrikes.
Indeed, in October 1973, to prevent a resumption of the Cambodia aerial bombing, Congress enacted (just weeks before the War Powers Resolution itself) a funding restriction barring “the involvement of United States military forces in hostilities in or over or from off the shores of North Vietnam, South Vietnam, Laos, or Cambodia, unless specifically authorized hereafter by the Congress.” (emphasis added) On November 16th—a week after the War Powers Resolution was enacted over Nixon’s veto—the Defense Appropriations Act of 1974 was signed into law with the exact same prohibition on “hostilities” but effective upon enactment. From this context, it appears clear that Congress meant to capture aerial bombing within the scope of the term “hostilities” and thus the restrictions of the War Powers Resolution.
Although the Trump administration’s attempt to circumvent the 60-day clock is legally unconvincing, it is hardly the first administration to resort to “creative” lawyering to continue hostilities past the deadline. In recent years, both the Obama administration (in Libya) and the Biden administration (in Yemen) relied on strained interpretations of the War Powers Resolution to continue hostilities notwithstanding the law’s restrictions and the absence of congressional authorization.
But the Trump administration’s reported theory goes even further than the arguments from past administrations in suggesting that any standoff airstrike by the United States is outside the scope of the War Powers Resolution by claiming that the resolution is inapplicable even when the president believes the strikes are part of an ongoing armed conflict, which purportedly includes hostile actions against the United States (the notion of an armed conflict with cartels and gangs and of hostilities against the United States by such groups are both facts we dispute, but which the administration has consistently claimed). Such an interpretation would allow the United States to wage an air war indefinitely without congressional authorization.
The Venezuela Hostilities – Operation Absolute Resolve
There is no doubt that Operation Absolute Resolve constitutes “hostilities” within the meaning of the WPR. And while WPR reports to Congress have almost never specifically stated so, this was implied in the report President Trump sent to Congress. In the context of explaining why the president needed congressional authorization to undertake the operation, one of us (Bridgeman) recently outlined (with Brian Egan and Ryan Goodman) the extensive nature of the military engagement:
On Jan. 3, President Donald Trump ordered a military operation that bombed Venezuelan air defenses and other targets in the country, seized Venezuelan president Nicolás Maduro and his wife Cilia Flores from their home, killed approximately 75 or 80 people, caused the injury of around six or seven U.S. service members, and potentially resulted in regime change Venezuela. As described in the War Powers Report subsequently provided to Congress, “the Armed Forces of the US conducted targeted and limited military strikes within the territory of the Bolivarian Republic of Venezuela.” The operation was more extensive than this brief sentence would indicate, distinguishing it from other contested unilateral uses of force that relied on unmanned “over-the-horizon” strikes (Syria in 2017 and 2018) or other types of one-off kinetic strikes (Iran in summer 2025).
Numerous officials in the Trump administration have publicly acknowledged that this named military operation was inherently risky (calling it “very dangerous” and “audacious”). It involved approximately 200 U.S. personnel on the ground in Caracas. There were, as would be expected in an operation of this nature, fire fights between U.S. forces and opposing forces, involving both Venezuelan and Cuban military forces. What’s more, the operation took place in the context of an extensive military build-up in the region, coupled with threats against Maduro to cede power, as well as an ongoing U.S. naval blockade of Venezuelan oil tankers. (The threats and blockade continue today.)
These facts are also important for the analysis of whether the operations constituted “hostilities” for WPR purposes. Based even on OLC’s exceedingly narrow view (a view contrary to the statute’s legislative history) on what types of military engagements constitute “hostilities” for WPR purposes, all of the hallmarks are present. To focus on the most salient and long-held criterion for the executive branch as to what constitutes hostilities – actual “exchanges of fire” between U.S. and hostile forces – this operation clearly did so. Indeed, the combat resulted in dozens of fatalities amongst Venezuelan and Cuban combatants as well as Venezuelan civilians, and injuries to seven U.S. servicemembers. Reportedly, one of the U.S. helicopters that took hostile fire during the operation almost didn’t make it out of Caracas.
The U.S. Senate also took the position that the military incursion into Venezuela constituted “hostilities.” On January 8th, the Senate voted 52-47 to advance a joint resolution to block further U.S. military action in Venezuela. That resolution specified in pertinent part that “use of military force by the United States Armed Forces within or against Venezuela constitutes the introduction of United States Armed Forces into hostilities.”
The Venezuela Termination Clock
At a minimum, the 60-day clock started running on Sunday Jan. 5th—48 hours after the operation to capture Maduro occurred. (Depending on the facts, there may be an argument that the clock should have started earlier in connection with the drone strike on Venezuela disclosed by President Trump.)
The Trump administration will most likely argue that there are no ongoing hostilities. Unlike the argument advanced in relation to the strikes on suspected drug trafficking vessels, which rested on the idea that the hostilities were essentially not intense enough insofar as they did not pose risks to U.S. personnel, in the Venezuela context the administration is instead likely to argue that Operation Absolute Resolve was a one-time engagement that ended as soon as US aircraft left Venezuelan airspace, taking all US personnel with them.
There are reasons to contest any such claims.
The U.S. military incursion into Venezuela, aerial bombardment of the country, attacks on Venezuelan and Cuban forces, and seizure of the commander in chief of Venezuela’s armed forces constitutes an “international armed conflict.” In contrast to the standard for a non-international armed conflict, the standard for an international armed conflict under international law is low. As explained by the International Committee of the Red Cross in its 1952 commentary on the Geneva Conventions, “Any difference arising between two States and leading to the intervention of armed forces is an [international] armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.”
This international armed conflict appears to be ongoing, including the prospect for further hostilities. Rather than proclaim the attack of January 2nd/3rd a “one and done affair,” President Trump has threatened another round of airstrikes, threatened the acting Venezuelan president with a fate “worse” than Maduro, and left open the possibility of U.S. “boots on the ground” in Venezuela. Notably, the War Powers report submitted by the White House to Congress in connection with the raid does not specify that U.S. military operations have concluded, as most reports of limited engagements (such as hostage recoveries, evacuations, rescue missions, and the like) have in the past. Instead, it is silent on the expected duration of the operations, although the president is statutorily required to provide that information. Moreover, U.S. armed forces remain stationed in the region and continue to support the interdiction of sanctioned oil tankers.
For these reasons, the 60-day clock for Operation Absolute Resolve appears to still be ticking.
How Should Congress Respond?
The Senate has now voted to discharge Senator Kaine’s joint resolution from the Senate Foreign Relations Committee, teeing up a floor vote on the resolution itself as well as potential amendments. In the House, Congressman McGovern has also introduced a concurrent resolution to remove U.S. armed forces from Venezuela without specific congressional authorization. (As a concurrent resolution would not be presented to the President for signature or veto, the Supreme Court’s decision in Chadha renders it highly unlikely it could be binding even if passed by both houses of Congress.)
In addition, measures in both the House and Senate have been introduced to exercise Congress’s ultimate war power—the power of the purse—to block funding for U.S. military operations in or against Venezuela. At present, it is unlikely that Congress could muster the votes for these various measures to overcome presidential vetoes even if they passed both houses.
Longer term, both sets of unauthorized hostilities and the willingness of the White House to disregard the 60-day clock with respect to the boat strikes should serve as a forceful reminder that Congress needs to reassert its constitutional prerogatives and responsibilities over the use of military force. Among other things, such congressional action should entail reforming the 1973 War Powers Resolution to close loopholes in that law and give it more teeth. Such reforms would include defining key terms, shortening the termination deadline for any unauthorized hostilities, enhancing transparency requirements, and, crucially, imposing mandatory funding cutoffs.
Regardless of the near term prospects for meaningful legislative reform, Congress must also engage in more rigorous oversight. This should include using all of the tools at its disposal (from the nominations process to use of its subpoena power, among others) to demand that the administration answer for its unilateral uses (and abuses) of U.S. armed forces and shine a spotlight for the American people on the gravity of the situation.
Conclusion
The U.S. Constitution assigns the power to Declare War and related war powers to the Congress for good reasons that remain as relevant today as ever. It is precisely because going to war is one of the most consequential choices a country can make that decisions on resorting to the use of force were intended to be difficult—to be made after public debate and deliberation by the people’s elected representatives. Although the President would have authority as commander in chief to repel sudden attack, other military actions would require the collective decisionmaking of the legislature. The Constitution does not authorize one person taking the country to war based solely on that individual’s policy or personal preferences.
Obviously, presidential administrations of both parties have departed from this constitutional model by using military force without congressional authorization in situations outside of immediate self-defense. But even by the standards of prior executives, the flurry of unilateral military actions by this administration is striking and deeply troubling to members of Congress and the public across ideological lines. Since returning to office, President Trump has overseen military strikes in Yemen (against the Houthis), Iran, the Caribbean, the Pacific, and Venezuela, all without any plausible congressional authorization (Nigeria might be added to that list, depending on the administration’s justification). (This is an addition to military actions in Syria, Iraq, and Somalia notionally pursuant to the 2001 Authorization for Use of Military Force.)
The last year of unauthorized, discretionary military interventions and the president’s threats of more to come—including even against a NATO ally—should spur the Article I branch of the U.S. government to reassert its constitutional prerogatives and indeed constitutional responsibilities over the use of force.
FEATURED IMAGE: The moon rises over the US Capitol Dome at sunset in Washington, DC, December 28, 2020. (Photo by SAUL LOEB/AFP via Getty Images)
