MORNING GLORY: Trump has the authority to strike the narco-states poisoning the US
Whatever President Donald Trump is planning to do to Venezuelan dictator Nicholas Maduro, it will be done without the explicit Congressional authorization some would like, but which is also unnecessary.
People who have actually read and studied the major precedents on the scope of all presidents’ powers in foreign affairs under Article II of the Constitution should know such actions will be presumed constitutional unless proven otherwise by a successful impeachment proceeding, or a SCOTUS ruling. Neither is very likely, as the country’s constitutional order long ago came around to reality about presidential power decades — indeed centuries — ago.
The first dramatic and perhaps still the most expansive use of presidential power was the Louisiana Purchase.
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The short summary of the president’s powers spelled out in Article II is: “The executive Power shall be vested in a President of the United States of America…. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United…”
That short excerpt from the Constitution defines the power of every sovereign with just a few words.
The first display of how much authority those short sentences convey was, as noted above, President Thomas Jefferson’s purchase of the Louisiana Territory, for which Jefferson himself believed he lacked authority.
Jefferson acted despite his beliefs because it was in the best interest of the country and the need to act was immediate. From that sweeping exercise of an unenumerated power of the chief executive to act as the sovereign power in the new country flowed a long line of presidential actions that sometimes unsettle modern day pundits when they don’t like the president in the Oval Office.
Trump has the same vast power as Jefferson. President Barack Obama had it for his approximately 540 drone strikes and his war in Libya, as did President Bill Clinton for his order to the American military to participate in the war in Bosnia in 1994 and the war in Serbia in 1999.
Many “Con law experts” have surfaced in recent days on X, and they have many opinions on President Trump’s decision to order strikes on drug boats. Some are superb lawyers and people of great learning and experience, like Andrew C. McCarthy and Ed Whelan. Others are part of the tenured left in law schools or NGO activists.
But, the new understudy for the role of the folks behind “Russia, Russia, Russia” is the hilariously self-named “The Former JAGs Working Group,” — folks who apparently missed the credibility collapse of such efforts post the publication of the “Public Statement on the Hunter Biden Emails by “51 former intelligence officials.”
Yeah. Try your luck with persuading anyone of anything, “former JAGS Working Group.” You are like the take home pregnancy tests for the TDS-afflicted. Anyone citing you is confessing to TDS. Thank you for your service.
But, in contrast to that “working group,” some serious people worry President Trump may escalate to “kinetic actions” against Maduro, cartels and other narco-states. They seek to persuade that President Trump is violating “international law,” but they do not “show their work” concerning a basic, neutral understanding of Article II’s grant of authority to the president — all presidents, the ones they love and applaud and those they hate and boo.
The Constitution doesn’t change as presidents leave and arrive. President Trump’s authority is the same as President Washington’s, Lincoln’s, FDR’s, Ike’s etc., as well as all the failed presidencies and those in-between. The powers of presidents are the same.
Some of the Con law experts invoked Justice Jackson’s key opinion in the Steel Seizure cases. Good. It is the equal of any of the relevant opinions, but all SCOTUS opinions in the area matter when it comes to every exercise of unilateral presidential action abroad. If an “X expert” or a talking head hasn’t even referred to those key opinions, of which Jackson’s is one, perhaps mute the account and skip booking that talking head.
Very few “X experts on Con Law” seem to know of or care about the decision in United States v. Curtiss-Wright Export Corp. (1936), in which SCOTUS held that “[a] political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense.”
Curtiss-Wright is often the first case provided to a law student in Con law casebooks when Article II is taken up, and its discussion of presidential powers is still excellent and very relevant commentary. (Short summary: The president’s power over foreign affairs is vast.)
Dames & Moore v. Regan (1981) concerned an enormous exercise of presidential power used to free our hostages in Iran. I emphasize enormous because the Court set aside the property and due process rights of many citizens, denying them the benefits of our court system and our Constitution’s guarantees and dispatching them and their claims to The Hague. (It denied it was doing so, but it did.)
Dames & Moore, written by Justice Rehnquist (not yet the Chief) begins: “The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed.”
That’s quite the bright red arrow pointing to the opinion as fundamental to our understanding of the scope of presidential power when he acts in foreign affairs.
Justice Rehnquist early on explicitly states that the decision is to be considered narrow (though it isn’t):
“We attempt to lay down no general ‘guidelines’ covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.” (Modesty that is becoming, but also misleading.)
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Justice Rehnquist cites both Curtiss-Wright and Justice Jackson’s opinion in the Steel Seizure cases and notes: “As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal, and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.”
That “never-ending tension” does not yet exist in President Trump’s directives to use military force against narco-states and the cartels that operate with their support or at least acquiescence. Right now he’s not even at “Panama invasion” levels of the use of Article II power George H. W. Bush used when 41 ordered the invasion of Panama, officially called “Operation Just Cause,” on December 20, 1989.
If and when Congress directs the president to stop striking drug boats, then the Constitutional issue would be joined. Until then, the key is from 89 years ago in Curtiss-Wright, when SCOTUS summarized the vast power of the president when it declared “political society cannot endure without a supreme will somewhere,” and added, “[s]overeignty is never held in suspense.”
The reality of all these cases (and the pending decision in the tariffs case) is that every POTUS has vast powers in foreign affairs, and courts (and especially pundits) do not. The criminal nations poisoning our people should know that and not rely on the “X experts” arguing otherwise.
Hugh Hewitt is host of “The Hugh Hewitt Show,” heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.
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