Jack Goldsmith: On the Legality of the Venezuela Invasion

Who is Jack Goldsmith?

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As I have argued before, there are few if any effective legal constraints on unilateral presidential uses of force. Everyone has an opinion about what those limits should be. Academics and politicians regularly maintain that this and that presidential use of force is unlawful, even though the legal framework for analysis, especially under domestic law, is contested.

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.


Here is his conclusion: 


In sum, it would not be terribly hard for the Justice Department to write an opinion in support of the Venezuela invasion even if the military action violates the U.N. Charter.

To repeat, that does not mean that the action is in fact lawful—and it pretty clearly isn’t under the U.N. Charter. It only means that the long line of unilateral executive branch actions, supported by promiscuously generous executive branch legal opinions, support it. As I wrote in connection with the Soleimani strike: “our country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.”

This is not the system the framers had in mind, and it is a dangerous system for all the reasons the framers worried about. But that is where we are—and indeed, it is where we have been for a while.


Follow the link above for more - I'll touch in this over the semester.

But he suggests that in reality, presidents can justify whaever they want.

If you want more, check these out from the same author: 

- OLC’s Meaningless 'National Interests' Test for the Legality of Presidential Uses of Force.

- The Middle East and the President’s Sweeping Power Over Self-Defense.

- The Soleimani Strike: One Person Decides.