The Law of Deposing Nicolás Maduro

Early in the morning on Jan. 3, the Trump administration crossed the Rubicon. After months of military build-up, maritime strikes, and other actions intended to put pressure on the regime of Venezuelan dictator Nicolás Maduro, President Trump directed U.S. special operations personnel—accompanied by federal law enforcement agents—to capture Maduro and his wife, Cilia Flores, in a late-night raid in Caracas. The operation succeeded with no American fatalities, though related U.S. attacks on military facilities, ports, and airports reportedly killed about 75 people. Both Maduro and his wife were subsequently transported to New York, where they have since been arraigned on federal drugs- and weapons-related conspiracy charges. Meanwhile, Trump and his advisers have suggested that they intend to leverage the ongoing quarantine on Venezuelan oil exports (and perhaps further military action) to effectively “run” the country through its new interim president, Delcy Rodríguez, who had been Maduro’s deputy—bypassing, it seems, the opposition movement that the United States has recognized as Venezuela’s de jure government since 2019, at least for the moment.

The decision to remove Maduro from power and assert control over Venezuela is likely to be one of the most consequential acts of Trump’s second presidency. But for its part, the Trump administration has thus far offered little by way of domestic or international legal justification for its actions. Building on other recent analyses, this piece attempts to take the scattered half-arguments the Trump administration has put forward and situate them against broader patterns of executive branch (and Trump administration-specific) practice to identify what arguments the administration seems most likely to rely on—and what the broader implications of doing so could be.

In the end, the Trump administration’s most likely legal justifications for its actions aren’t surprising. The Maduro operation flows readily from the same legal justification that the Trump administration has already put forward in regard to its campaign of maritime strikes—a deeply flawed one that has the potential to destabilize an important pillar of the international system. As for domestic law, the relatively targeted Maduro operation—despite its massive regional implications—colorably falls within the extraordinarily broad authority to use force that the executive branch claims for the president. But these assessments shift when one considers President Trump’s threats of a much more substantial “second wave” of military operations that could include the deployment of ground troops. Even under the Trump administration’s own logic, such action would raise new and challenging questions that cast the president’s authority to take such steps—as well as the wisdom of doing so on his authority alone—into serious doubt. 

A Familiar but Flawed International Legal Justification 

As reflected in the United Nations Charter, international law generally prohibits the use of force between states in the absence of authorization by the UN Security Council. This presents a clear problem for the Maduro operation, which indisputably entailed the interstate use of force without such authorization. The only express exception to this restriction is provided in Article 51 of the UN Charter, which holds that the charter generally—including the restriction on the use of force—is not intended to impair any state’s “inherent right of individual or collective self-defence” when faced with an actual or imminent “armed attack.”

No doubt this is why U.S. Ambassador to the United Nations Mike Waltz invoked Article 51 in recent media comments defending the legality of the Maduro operation. But he made no effort to elaborate on why he believes U.S. actions qualify as self-defense within the meaning of Article 51, in either his remarks to the press or his address to the UN Security Council the next day. Instead, one must look to the Trump administration’s other recent practice to understand how the Trump administration is likely to argue that its actions comply with international law—and some of the problems those arguments themselves present.

The Trump administration has already invoked Article 51 to justify its related campaign of airstrikes against alleged drug smuggling vessels in international waters in the Caribbean and eastern Pacific. Specifically, it has argued that the trafficking of narcotics into the United States—at least when combined with other “hostile acts” pursued by the cartel Tren de Aragua and other targeted organizations—is the equivalent of an “armed attack” against the United States, triggering the international legal right to use military force in response. 

The same argument seems likely to be extended to the Maduro operation as well. The Trump administration has argued from the outset that Tren de Aragua is an agent of the Maduro regime. International law, in turn, makes states responsible for the wrongful acts of private actors acting “under the direction or control of” their governments. For the purposes of international law, this refers to whichever regime is in effective control of the state (sometimes called its de facto government), regardless of whether it has been formally recognized as such by other foreign governments (sometimes called de jure recognition). In the case of Venezuela, the de facto government almost certainly remained the Maduro regime up until his capture, even though the United States and many other countries ceased to recognize it as the de jure government in 2019. Hence, under the facts as alleged by the Trump administration, the actions of Tren de Aragua—including its alleged armed attack on the United States in the form of narcotics trafficking—could arguably be attributed to Venezuela as a whole, providing a potential legal basis for military action. 

Of course, this does not mean that this argument is persuasive. The Trump administration’s position has been widely criticized in the context of the maritime strikes, and many of those criticisms would apply equally well to the Maduro operation. Here is how a co-author and I addressed some of the relevant issues with this argument in a prior piece:

[T]his argument is a severe departure from both conventional understandings of international law and the past official positions of the United States. Most states view the “inherent right of individual or collective self-defence” described in Article 51 [of the UN Charter] as applying where there has been (or imminently will be) armed violence whose “scale and effects” rise to a level of severity above “mere frontier incidents” and other minor hostile encounters. The United States has long rejected this view and asserted that any level of armed violence can constitute an armed attack triggering the right of self-defense. But it has still maintained that an armed attack must entail some degree of “direct physical injury and property damage…like that which would be considered a use of force if produced by kinetic weapons.” This is in part because other states have occasionally accused various non-military U.S. actions—such as the imposition of economic sanctions—as being tantamount to an armed attack, a view to which the United States has traditionally objected. It also reflects the well-established understanding of the authors of the UN Charter and decades of state practice that both preceded and followed it.

According to some reports, the classified Office of Legal Counsel opinion being used to justify the maritime strikes draws parallels between narcotics like fentanyl and chemical weapons. This is most likely an effort to try and bring the administration’s legal theory into closer alignment with these existing U.S. legal positions, specifically by emphasizing similarities in the two chemicals’ physical effects. But even if one accepts this parallel, countless other distinctions make it extraordinarily difficult to square treating narcotics smuggling as an armed attack with even the relatively permissive understandings of international law employed by the United States. After all, most Americans are willing recipients (addiction notwithstanding) of the narcotics purportedly being used to attack them—and smugglers do not necessarily intend for the narcotics to kill the recipients (though they may accept this as a possibility), as this would eliminate their consumers.

Adopting the Trump administration’s definition of armed attack would dramatically expand what kinds of actions may be lawfully answered with the use of military force, with far-reaching and potentially destabilizing consequences. For example, could selling tobacco—of which the United States is the world’s third largest exporter—constitute an armed attack allowing for an armed response? Or economic sanctions and other measures that might restrict access to food and medicine, resulting in similar physical effects? The end result of such broadening is likely to be a dramatic expansion of the circumstances in which states are entitled to resort to the use of military force, in direct tension with what most see as the UN Charter’s intent.

There are also reasons to question whether the Maduro operation was a necessary and proportional response to these purported “armed attacks,” as is required by international law. Even under the relatively generous understanding of these requirements advanced by the United States, it is not clear how Maduro’s removal is expected to address the threat his regime posed to the United States—especially as the Trump administration seems to be leaving the rest of that regime in place.

That said, these and other serious problems with the Trump administration’s international legal argument have not prevented the Trump administration from continuing to rely on a self-defense justification in pursuing its ongoing campaign of maritime strikes. The same seems likely to be true in regard to the Maduro operation as well.

Some senior administration officials have hinted at other arguments that appear to sound based in part on international law. But they are almost invariably red herrings. Most eventually lead back to an Article 51 self-defense claim as the only colorable international legal justification for what the Trump administration has done.

Several senior administration officials—including Waltz before the UN Security Council—have framed the administration’s actions as a “law enforcement operation” intended to bring Maduro to justice in the United States, and sought to distinguish it from a “war against Venezuela.” The implication is that the United States has an international legal right to enforce its criminal laws in Venezuela, including through the military. But this argument is not even colorable. While states can sometimes exercise extraterritorial enforcement jurisdiction, they generally cannot do so without the consent of the state in which they are operating and must seek the voluntary transfer (or “rendition”) of overseas criminal suspects to their custody, generally through mechanisms like extradition treaties. Where states (including the United States) have sometimes captured criminal suspects overseas and forcibly returned them to the United States for prosecution—a practice known as “irregular rendition”—this has generally been viewed as a violation of this normal operation of international law, not an act consistent with it. U.S. officials have previously suggested that some such actions could be justified as acts of inherent self-defense under international law, but only if they otherwise meet the relevant international legal standards. In other words, Article 51 does not contain a freestanding exception to the prohibition on the use of force for law enforcement operations; instead, any such operations would still have to meet the requirements of a conventional self-defense claim.

The same is true of the related argument that the use of force was only pursued in defense of the law enforcement personnel engaging in the arrest of Maduro and his wife. Some authorities do maintain that international law allows soldiers and other government personnel to use force in “unit self-defense” in limited circumstances where they have come under actual or imminent attack, or to aid each other in exercising this self-defense. But such claims are generally predicated on the idea that the personnel in question are facing actual or imminent attacks while engaged in otherwise permissible conduct. As discussed above, the U.S. personnel entering Venezuelan territory to capture Maduro were not engaged in a permitted activity under international law; to the contrary, they were taking actions in another state’s territory without its consent in violation of international law. Accepting unit self-defense as a valid basis for military action in such scenarios would essentially vitiate countless other aspects of the international legal system, as states could simply insert personnel in each other’s territories in violation of international law and dare them to strike back. Perhaps more importantly, accounts of the Maduro operation make clear that the United States struck Venezuelan military and transportation facilities first, before any direct threat was presented to U.S. personnel, and did not notify Venezuelan authorities of what they were doing so as to give them the opportunity to cooperate. This is just a conventional use of force against another state, and the only exception in the UN Charter for such attacks is in Article 51.

President Trump himself has nodded toward another potential international legal argument in noting that Venezuela has previously “unilaterally seized and sold American oil, American assets and American platforms, costing us billions and billions of dollars”—unlawful actions for which he now wants to secure restitution. He may well be correct that those seizures constituted unlawful expropriations of U.S. national property in violation of international law. But once again, there is no exception to the UN Charter’s prohibition on the use of force for military action to correct unlawful expropriations. To the contrary, the UN Charter was specifically intended to limit the use of interstate force as a tool for addressing general international law violations. This is precisely why, absent UN Security Council authorization, it permits the use of force only in cases of self-defense. 

There is one other possible international legal justification that some expected the Trump administration to pursue, though it ultimately did not: consent, specifically from the 2015 National Assembly that the United States has, since 2019, de jure recognized as the “only legitimate branch of the Government of Venezuela.” Under the UN Charter, states can consent to the use of military force on their territory by other states, at least to whatever extent the host government itself can use military force. Similar consent by the government-in-exile ousted by Manuel Noriega played a prominent role in the public justification for the U.S. intervention in Panama offered by the George H.W. Bush administration. But this argument would not have gone as far as some observers might have believed, even if the National Assembly had been willing to give it. According to most authorities, such consent must generally come from the de facto government in effective control of a state’s territory, which in this case would have been the Maduro regime, not the 2015 National Assembly. And the United States has acknowledged as much in the past, with the George H.W. Bush administration’s own State Department legal adviser asserting that consent to the use of force by Panama’s government-in-exile would have been effective only if it had “controlled Panamanian territory and been able to exercise governmental powers” (i.e., been in effective control). Hence, it’s perhaps not surprising that the Trump administration does not appear to have tried to secure consent from the 2015 National Assembly before acting—all the more so because, in spite of the U.S. recognition policy the first Trump administration put in place, it does not appear to envision them as having a role in governing post-Maduro Venezuela, at least in the short term. 

There is, of course, one final possibility: that the Trump administration will not try to justify its actions under international law whatsoever. Given the open skepticism that many in the Trump administration have expressed toward international law and institutions, this can’t be ruled out as a possibility. But it’s an inclination the Trump administration hasn’t given in to yet in its prior uses of force, and it seems unlikely to do so now. The simple reality is that the Trump administration will still need the cooperation of foreign governments moving forward, especially if it hopes to assert control over elements of Venezuela’s oil sector and sell the results on global markets. And many of those governments and their political constituencies still care about international law, even if the Trump administration does not. The international legal arguments available to the Trump administration may not be persuasive, but they at least acknowledge the broader international legal framework in a way that outright repudiation would not, easing the path to some degree of acceptance or acquiescence by others in the international community. This is why the United States almost always ends up offering an international legal justification even for its most controversial actions. In the rare cases where it has not (as with the U.S. intervention in Kosovo), it has generally instead sought to build a case for “legitimacy” in spite of the technical international law violation with strong multilateral buy-in—and the opportunity to pursue this alternative for the Maduro operation, if it were ever a possibility, seems to have passed.

Regardless, one thing is clear: Whatever obligations international law may impose, the Trump administration most likely sees them as strictly external constraints, not domestic legal limitations on the president’s authority. This is the view espoused by a 1989 Justice Department legal opinion that the Trump administration has reportedly relied on in its internal deliberations. Authored to reverse a prior legal opinion that had cast doubt on the FBI’s ability to capture criminal suspects overseas in violation of international law, it maintains that the president’s constitutional duty to “take Care that the Laws be faithfully executed” does not extend to either customary international law or non-self-executing treaties, including the UN Charter. Legal scholars have long criticized the opinion’s analysis and offered compelling counterarguments, but the Justice Department has neither rescinded nor narrowed it. As a result, the Trump administration has executive branch precedents for arguing that, whatever limits may exist on the president’s legal authority to use military force, they must come from a source other than international law: namely, U.S. domestic law.

Another Claim of Broad Presidential War Powers

The Trump administration has been more forthcoming regarding the domestic legal basis for the Maduro operation, but only a bit. On Jan. 5, President Trump provided Congress with a statutorily required report that describes in part the domestic legal basis for the Maduro operation, albeit in broad terms. After reiterating many of the accusations against Maduro and his regime and noting the Justice Department’s intent to arrest him, it simply states:

The United States Department of Justice anticipated that Maduro and [his wife] would resist capture by all available means, including by resorting to extreme violence. United States military forces were therefore necessary to help effectuate their apprehension, arrest, and transportation to the United States for criminal prosecution.

The actions of our Armed Forces have been directed by me consistent with my responsibility to protect United States citizens both at home and abroad; to take care that the laws are faithfully executed; to conduct the foreign relations of the United States; and in furtherance of United States national security and foreign policy interests, pursuant to my constitutional authority and as Commander in Chief and Chief Executive.

In short, the Trump administration does not claim to be relying on any statutory authorization for displacing Maduro. Instead, President Trump authorized the operation using the inherent authority provided to him as president by Article II of the Constitution.

As with the international law analysis, the Trump administration’s framing of the Maduro operation as a law enforcement effort is largely a distraction. While the president undoubtedly has substantial inherent and exclusive constitutional authority to take steps to enforce federal law, this does not generally allow the executive branch to sidestep other constitutional limitations on its authority. The president could not regulate foreign commerce (an authority the Constitution provides to Congress) as part of a law enforcement effort any more than he could seek to quarter troops in private homes (something prohibited by the Third Amendment during peacetime) or execute an unreasonable search or seizure (contrary to the Fourth Amendment). In the same vein, the president cannot simply claim that his law enforcement authority allows him to use military force in situations where that authority is provided to another branch of government.  

Exactly how much of the authority to use military force belongs to the president and how much belongs to Congress—to whom the Constitution gives the authority to “declare War”—is the subject of a long-standing and ongoing legal debate. In recent decades, however, the executive branch has developed a framework that it generally applies to answer this question. As I recently described in another piece: 

The executive branch has long maintained that Article II gives the president broad inherent constitutional authority to use military force without congressional authorization. Such views have proved controversial among legal scholars and have never been fully vindicated in the federal courts. But most judges have been reluctant to put limits on the executive branch’s actions absent clear statutory restrictions by Congress, which—with the limited (and somewhat flawed) exception of the 1973 War Powers Resolution—have not been forthcoming. As a result, the executive branch’s broad views of presidential authority remain the operational ones for purposes of informing U.S. military actions. 

Past presidents have sometimes framed the president’s inherent constitutional authority to use military force as essentially plenary. But most recent administrations—including the first Trump administration—have instead argued that, “at least insofar as Congress has not specifically restricted it,” this authority extends to situations where the president can reasonably determine that the anticipated military actions will (a) “serve sufficiently important national interests” and (b) be of a “nature, scope, and duration” that does not rise to the level of “a war requiring prior specific congressional approval under the Declaration of War Clause”—a threshold the executive branch equates with “prolonged and substantial military engagements[.]” Congress has in turn set certain limits on this authority through the aforementioned War Powers Resolution, most notably by requiring the president to “terminate” any military operation that lacks congressional authorization after 60 to 90 days absent certain extenuating circumstances. While some past presidents have argued that this restriction is unconstitutional, recent ones have rarely contested it. That said, the executive branch has occasionally suggested—including during the first Trump administration—that neither the Declare War Clause nor statutory limitations apply in certain circumstances where the president is acting in national self-defense, as he has some exclusive constitutional authority to do so.

Of course, this framework simply reflects the views of the executive branch and is not necessarily correct as a legal matter. Nor have the executive branch’s views been vindicated by federal courts, which are rarely presented with war powers questions and often use flexible justiciability doctrines and other tools to avoid reaching the merits when they do. This same reticence, however, also means that there is a limited risk that the executive branch will face meaningful judicial scrutiny of its legal reasoning for such actions, leaving it free to rely on its own, quite forgiving views of when the president can use military force on his or her own authority. Thus, unless President Trump chooses to revert to some of the even broader (and more controversial) claims of presidential war-making authority asserted by some of his predecessors, his administration is likely to justify the Maduro operation through this legal framework. 

The first prong of this two-part test—whether a given military operation could reasonably be seen as serving “sufficiently important national interests”—is a highly deferential one that rarely imposes meaningful constraints on the executive branch. In the case of Maduro, several recent presidential administrations (as well as foreign governments and independent third parties) have identified serious policy concerns that he and his regime raised, some of which may well have contributed to regional instability. This is also where President Trump’s interest in the enforcement of federal criminal laws may reasonably come into play. Of course, there are other potential consequences of the Maduro operation that might work contrary to U.S. national interests, including the risk that Venezuela will be substantially destabilized. But under the deferential standard the executive branch applies, there is likely enough to credibly satisfy this prong.

The second, “nature, scope, and duration” prong, however, presents a more complicated question. The Maduro operation itself was limited in scope and targeted in objectives, factors that have previously been cited as favoring a finding that military action falls below the “war for constitutional purposes” threshold. But removing a foreign head of state undoubtedly has the potential to be highly escalatory and could invite a substantial military response. And the use of ground troops has previously been flagged as a factor that favors the conclusion that congressional authorization is required. Someone looking at the Maduro operation objectively—particularly beforehand, without knowledge that it would ultimately be pulled off successfully without American fatalities—could readily identify credible reasons why it presented a serious risk of becoming much more complicated and involved hostilities.

That said, any such analysis ultimately hinges on where exactly the “nature, scope, and duration” threshold is for a war to require congressional authorization—something the executive branch has never pinned down with any specificity beyond “prolonged and substantial military engagements.” But the lines most frequently pointed to are the Korean and Vietnam Wars, though the Justice Department has occasionally suggested that the bar should actually be somewhat lower. This suggests—or at least opens the door to the Trump administration applying—an exceptionally high bar. Given the targeted nature of the Maduro operation and Venezuela’s limited ability to respond militarily against the United States, it’s perhaps not surprising that the Trump administration would conclude that the risk of escalation into a conflict that comes close to those in Korea and Vietnam was limited, allowing the president to proceed on his own authority.

Congress could change these dynamics by installing clearer statutory limitations on the use of military force, the transgression of which would create the sort of interbranch conflict that federal courts have suggested might warrant judicial intervention and scrutiny, including in the war powers context. But the only statutory limits that Congress has imposed to date are those in the 1973 War Powers Resolution. The main restriction it imposes is a requirement that the president “terminate any use of [the U.S.] Armed Forces” after 60 to 90 days if not congressionally authorized, absent certain extenuating circumstances. But as the Maduro operation was over in a matter of hours, this limitation does not apply. 

Notably, the War Powers Resolution does direct the president to “in every possible instance…consult with Congress before introducing [U.S.] Armed Forces into hostilities” (emphasis added). But congressional notification did not occur until after the Maduro operation was already under way, something that has been a particular bone of contention with legislators. The executive branch, however, has long taken a very broad view of when such consultation is not “possible,” which has previously included situations where there is a need for expediency and operational secrecy. This gives the Trump administration ample precedents to rely on in making the same claims in regard to the Maduro operation, as Secretary of State Marco Rubio did in remarks shortly after the raid concluded.

In short, as consequential as the Maduro operation may prove, it does not stand out against the broader backdrop of actions that prior presidents have pursued on their own authority or the legal standards they have applied in doing so. Indeed, the closest historical parallel that is often cited—the 1989-1990 intervention in Panama that deposed Noriega and brought him to the United States for prosecution, which President George H.W. Bush pursued without congressional authorization—entailed much more substantial and extended military operations, involving tens of thousands of U.S. soldiers over several weeks. For many, this may be less a justification of the Trump administration’s actions than a condemnation of the executive branch’s past practice. But regardless, it is the context in which the Trump administration conceived and will now have to justify the Maduro operation.  

What About a “Second Wave”? 

Of course, U.S. military operations in Venezuela may not be over. “[W]e are ready to stage a second and much larger attack if we need to do so,” President Trump stated at a Jan. 3 press conference. “We’re not afraid of boots on the ground,” he later elaborated, suggesting that more substantial military operations may yet be on the table—particularly if the new Rodríguez regime fails to comply with American demands. Any follow-on military action is likely to involve similar questions as the Maduro operation, as discussed above. But depending on how such a military operation proceeds, it may raise additional issues as well. 

As a preliminary matter, the very threat of a “second wave” raises serious international legal questions. The UN Charter obligates member states to “refrain … from the threat or use of force against the territorial integrity or political independence of any state[.]” Hence, using the threat of further military operations to extract concessions from the Rodríguez regime is itself arguably in violation of international law, particularly if neither is clearly related to a claim of self-defense under Article 51. This may be why, in later press engagements, Secretary Rubio was intent on clarifying that “the leverage we have here is the leverage of the quarantine” over Venezuelan oil exports, not that arising from the threat of future military action—though this understanding is hard to square with President Trump’s earlier statements.

Making good on these threats, meanwhile, would present other issues. Even if the Trump administration continued to rely on the flawed Article 51 rationale underlying its strikes on narcotics traffickers and (presumably) the initial Maduro operation, a second and potentially broader military operation would raise even more serious questions about necessity and proportionality. To credibly justify such action even under the administration’s own logic, there would have to be a reasonable nexus between the subsequent military action and the narcotics trafficking and other purported “hostile acts” that, in the Trump administration’s view, qualify as armed attacks. Moreover, if these acts are primarily being pursued by Tren de Aragua and other proxies, there would have to be a basis for believing that those actors are still acting as agents of the Rodríguez regime, even without Maduro in power.

A more substantial military campaign could also implicate additional aspects of international law not currently in play. Most notably, despite President Trump’s stated intent to “run” Venezuela, the country has not been “actually placed under the authority of a hostile army” in a manner that would normally trigger the international law of occupation. But this could change if the Trump administration invades and seeks to exercise direct military control over Venezuela, as the United States did in Iraq from 2003 to 2004. Becoming an occupying power would, in turn, impose an array of additional international legal duties and obligations on the United States.

The most serious implications of a second wave military operation, however, could be for U.S. domestic law. The limited nature of the Maduro operation helps it fit relatively comfortably under the “nature, scope, and duration” threshold employed by the executive branch. But it could be harder to credibly conclude that a more substantial follow-on military operation does not risk becoming a “prolonged and substantial military engagemen[t]” of the sort that arguably requires congressional authorization, particularly if it entails extended deployments of ground troops. The executive branch would still be the ones conducting this assessment, of course, and President Trump could no doubt find and empower lawyers at the Justice Department willing to sign on to such a legal opinion if he were intent on doing so. But the credibility of that conclusion—and those involved in reaching it—would suffer, as would its ability to persuade anyone of the legality of the administration’s actions. 

Any military operation that lasts past 60 to 90 days also risks triggering the time limitations imposed by the War Powers Resolution. The executive branch has developed a number of legal arguments as to why this restriction does not apply to various types of military operations, including by arguing that it was not intended to apply to limited uses of air power and by treating intermittent hostilities as independent incidents subject to separate timelines. But few of these past arguments readily apply to any military operation that involves the long-term deployment of U.S. ground troops onto Venezuelan territory. Hence, if this is the route the Trump administration wishes to pursue, it would likely either have to secure authorization from Congress or argue that the War Powers Resolution’s termination provisions are unconstitutional, as the Nixon administration once did. Notably, however, internal executive branch legal assessments have since cast cold water on the latter position. 

Congress could also impose additional statutory limitations before any future “second wave” takes place. In response to the Maduro operation, the Senate is already expected to debate certain measures that would restrict President Trump’s authority to use force against Venezuela. Expedited procedures associated with the War Powers Resolution allow even a minority of legislators to force at least one procedural vote on such measures in the Senate (but not the House), though they will require a majority in both chambers to be enacted and a supermajority of two-thirds to override a likely presidential veto and become law, neither of which seems likely in the current political environment. But opposition could build if Venezuela goes poorly and the Trump administration seems intent on deploying ground troops or pursuing other costly and potentially unpopular measures—including among Trump’s fellow Republicans in Congress, who are facing a difficult midterm election and have proved willing to occasionally buck the House majority leadership’s ability to control the agenda in recent months. Similar resolutions passed with bipartisan majority support in both chambers in relation to both Yemen and Iran during Trump’s first term in office, though they were ultimately vetoed. While such measures never became law, they may still have legal import as expressions of congressional disagreement under the relevant legal frameworks generally applied by the courts. And such visible disagreement by Congress is likely to prove politically damaging.

An extended occupation of Venezuela would also provide Congress with ample additional opportunities to restrain the executive branch beyond such joint resolutions. Even if the Trump administration does not seek Congress’s ex ante authorization, any such effort is likely to eventually require supplemental appropriations and authorizing legislation. Later this year—or, in the case of government funding, as soon as this month—the executive branch will also need Congress to enact regular legislation to keep operating and maintain any ongoing war effort, including annual national defense and appropriations legislation. Congress can set whatever conditions on such legislation it likes. And while President Trump’s party controls Congress by a slim margin, strong internal disagreements within his political coalition over the Venezuela intervention and similar actions make it far from clear that even the current Republican Congress will give the president everything he wants—especially in a midterm election year, when the president’s actions are already proving unpopular. Nor does it seem likely that the results of the midterm elections will yield a Congress friendlier to the president’s foreign policy agenda. This is, in fact, a major reason why most presidents who have pursued extended overseas military operations have sought advance congressional authorization, even as they have argued it’s not strictly necessary: to get congressional buy-in and share responsibility in order to make it easier to secure such support moving forward. If the Trump administration finds that a second wave is necessary in Venezuela, it may yet regret not having gotten Congress onboard before acting.

Finally, an expanded and extended “second wave” military operation could increase the risk that the executive branch will have to face something that it has thus far studiously avoided: meaningful judicial scrutiny of the president’s legal authority. War powers issues rarely come before federal courts in part because relatively few people usually have standing to raise them. But affected service members are among those who often do, and the possibility that one will have the opportunity and incentive to serve as a plaintiff increases as military operations involve more soldiers for a longer period of time in more dangerous ways. Certain other types of follow-on military operations—like those involving substantial detention operations or channeling more criminal suspects into federal prosecution in the United States—might produce other potential plaintiffs as well.

If plaintiffs with standing do come forward and present legal challenges, there is also reason to believe that substantial “second wave” military operations increase the odds that at least some federal courts may be willing to take up these legal challenges and address them on the merits. Extending past the 60- to 90-day War Powers Resolution cut-off (or transgressing any additional statutory limitations Congress may impose) will present the exact sort of interbranch conflict that federal courts have often suggested is subject to judicial resolution, including in the war powers context—a view reinforced by the Supreme Court as recently as 2012. Faced with a scenario in which the Trump administration is acting in clear contravention of a statute, federal courts may finally feel compelled to address whether such restrictions are within Congress’s authority to impose. And the executive branch may not like the answer. As Justice Brett Kavanaugh once wrote before rising to the Supreme Court, “It is not likely a winning strategy ... for a President to assume that he will be able to avoid judicial disapproval of wartime activities taken in contravention of a federal statute.”

Many observers of war powers are skeptical that federal courts will ever take this step, in part because it has rarely, if ever, happened. But part of the reason it has rarely happened is because the executive branch has rarely pushed the limits of its authority so far in such sustained fashion. If President Trump were to go so far as to try and occupy Venezuela for a substantial period without congressional authorization as he has threatened, he would arguably be the first president to take such severe action on his own constitutional authority since the Korean War. No one should be confident in how federal courts would approach such an extraordinary scenario, least of all the executive branch.

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In defending the Maduro operation, Secretary of Defense Pete Hegseth described it as a “bold and audacious move” intended to “flip the script” on the U.S. intervention in Iraq, by providing the United States access to “additional wealth and resources … without having to spend American blood” instead of committing it to a long and costly occupation. But that outcome represents a major bet on the part of the Trump administration, as there is no guarantee that simply removing Maduro will deliver the outcomes the administration wants, both legal and otherwise. This is no doubt why the Trump administration has threatened a “second wave” of military action in Venezuela—as a further hedge against the risk that the Rodríguez regime and other relevant actors in Venezuela will not play ball and fall in line, as they must do for the Trump administration’s plans to succeed.

But the legal arguments the Trump administration is most likely relying on to justify its actions hinge in large part on the targeted nature of the Maduro operation. Any substantially broader military operations in Venezuela—let alone the military operations against Colombia, Iran, and Greenland that President Trump has threatened in recent days—would break from this model and raise new legal questions, some of which could present real-world obstacles. Paired with the practical and political challenges such actions would present, there is good reason to doubt how credible these threats truly are. And if the Trump administration’s big gamble in Venezuela begins to fail, it will quickly become clear just how effective a foreign policy built on bluster can actually be in delivering the gold-plated outcomes Trump has promised to the American people.