VENEZUELA OPERATIONVenezuela—Indictments, Invasions, and the Constitution’s Crumbling Guardrails
The Constitution’s limits on foreign affairs power do not vanish simply because courts decline to enforce them. They persist both as structural commitments and as warnings. The fact that impeachment and political accountability may be the only remaining checks on such actions is not a solution; it is an increasingly hazardous pathology that puts America at far greater risk than any single foreign despot could, even one as brutal and destructive as Nicolás Maduro.
Last week, US forces attacked various locations in Venezuela in an operation to capture the loathsome President Nicolás Maduro and bring him to New York to face federal weapons and drug-trafficking charges for which he and other Venezuelan officials were indicted in 2020. Much ink has already been spilled regarding the legality of that operation and whether it transgresses the allocation of power over foreign affairs between the legislative and executive branches.
The short answer is that while the operation, which appears to have been more about regime change than law enforcement, raises profound constitutional concerns, the courts will almost certainly bless the ensuing prosecution and leave to Congress the decision whether to punish the president for overstepping his authority or claw back its war-making and foreign-policy responsibilities from an increasingly ambitious executive.
I. Noriega and the Judicial Template
In 1988, a federal grand jury in the Southern District of New York indicted Manuel Noriega on racketeering and drug trafficking charges, alleging that he had used his position as Panama’s de facto ruler to facilitate large-scale narcotics smuggling into the United States. In December 1989, the United States launched Operation Just Cause, invaded Panama, captured Noriega, and brought him to the United States to stand trial.
Noriega challenged virtually every aspect of that process. He argued that his seizure violated international law, that the invasion of Panama was unlawful, that he enjoyed head-of-state immunity, and that due process forbade his prosecution following a forcible extraterritorial capture. He lost on all counts. Federal courts held that the manner in which a defendant is brought before a US court—even by force, even from foreign soil—does not defeat criminal jurisdiction. They deferred to the executive branch’s determination that Noriega was not entitled to immunity and declined to treat alleged violations of international law as creating individual defenses in domestic criminal proceedings.
Critically, courts refused to consider the legality of the invasion itself. Whatever constitutional or international law questions Operation Just Cause may have raised, judges treated them as separate from—and irrelevant to—the criminal prosecution. Once Noriega was in custody pursuant to a valid indictment, the courts’ work, in their view, was essentially done.
That approach has hardened over time such that the Noriega precedent is treated not as an aberration, but as settled law.
II. Why the Noriega Precedent Will Likely Control Here
From a judicial standpoint, the parallels between Noriega’s and Maduro’s positions are obvious and likely dispositive. Like Noriega,
