But here is the reality. Congress has given the president a gargantuan global military force with few constraints and is AWOL in overseeing what the president does with it. Courts won’t get involved in reviewing unilateral presidential uses of force. And no country plausibly could stop the U.S. action in Venezuela.
That means that in practice the only normative legal framework for presidential war powers that matters derives from executive branch precedents and legal opinions. The Justice Department, if asked, easily could have drafted an opinion based on these precedents and opinions to justify the invasion of Venezuela.
Below is my quickly written explanation for this conclusion, but of course the analysis is preliminary since there is much we do not yet know.
Domestic Law
The main precedent DOJ could cite is President George H.W. Bush’s invasion of Panama in 1989 to arrest and bring strongman General Manuel Noriega to justice in the United States, in part for drug trafficking. Some will seek to distinguish the Noriega matter from the Venezuela invasion on the grounds that Panama Defense Forces had recently killed a U.S. Marine and the Panamanian National Assembly had declared that a state of war existed between the Republic of Panama and the United States.
But the Panama precedent will nonetheless matter to the Venezuela attack due to this 1989 opinion by then-Assistant Attorney General Bill Barr, issued six months before the invasion. That opinion justified FBI arrests in foreign countries under domestic law even if doing so violated international law. It specifically concluded: