A stark exchange between two of America’s foremost legal minds reveals how presidential war powers have quietly escaped the reach of courts, Congress, and the law itself.
Bob Bauer and Jack Goldsmith stand among the most influential contemporary American legal scholars writing on executive power, constitutional structure, and the law of the presidency. Bauer, a Professor of Practice and Distinguished Scholar at New York University School of Law, served as White House Counsel to President Barack Obama from 2009 to 2011 and has remained a central figure in debates over democratic governance, executive accountability, and constitutional restraint, most notably through his co authored works After Trump and The Unraveling. Goldsmith, the Learned Hand Professor of Law at Harvard University and a former Assistant Attorney General who headed the Office of Legal Counsel, is widely regarded as one of the leading authorities on presidential power, national security law, and foreign affairs, with a substantial body of scholarship that includes books, casebooks, and sustained commentary through platforms such as Lawfare and Executive Functions.
This essay grows out of their recent public discussion concerning the United States’ use of military force in Venezuela, the legal rationales advanced by the executive branch to justify that action, and the subsequent seizure and removal to the United States of Venezuela’s head of state and his first lady for criminal proceedings. Drawing on their exchange, the discussion explores the deeper implications of this episode for the law of war powers, the evolution of executive legal precedent, and the increasingly uneasy boundary between legality and politics in the contemporary exercise of American military and judicial authority.
The dialogue between Bob Bauer and Jack Goldsmith offers an unusually candid and sober examination of the present condition of United States war powers law. What makes their exchange especially significant is not merely its subject matter, namely the unilateral deployment of force in Venezuela and the extraordinary apprehension of a foreign head of state, but the extent to which both speakers converge on a deeply sceptical conclusion about the continuing relevance of legal constraint in this field. Over the course of the discussion, Goldsmith articulates a position that is at once descriptive, pessimistic, and quietly radical. He argues that the law governing presidential uses of force has been hollowed out by decades of practice, executive precedent, and congressional acquiescence, to such an extent that legality itself has become largely performative. Bauer, while probing the implications of this claim, ultimately reinforces rather than dismantles it, revealing a shared concern that constitutional war powers have evolved into a political artefact rather than a meaningful juridical limit.
At the centre of Goldsmith’s argument lies the near total absence of judicial engagement. As he bluntly observes, “we don’t have any Supreme Court precedents. So the court really has not engaged with the question ever about the circumstances under which the president can use unilateral force.” The sole exception he identifies, the Prize Cases of the Civil War, is narrow and tightly bound to historical context, validating President Lincoln’s actions under a theory of self defence during an existential national crisis. Outside that singular moment, the judiciary has consistently avoided adjudicating the core separation of powers question at the heart of war making authority. This judicial silence, Goldsmith argues, is not simply a doctrinal gap. It is the structural condition that permits executive power to expand with minimal resistance. Without authoritative judicial interpretation, the constitutional text becomes pliable, and its meaning is increasingly shaped by political practice rather than legal principle.
Goldsmith emphasises that the relevant legal materials themselves are deeply contested. He notes that “we’ve got the constitutional text and we’ve got 250 years of practice,” and that while there is “a great debate over the original understanding of the War Powers and the Declare War Clause, the Commander in Chief Clause, and the like,” that debate has been “overtaken by practice in 250 years.” This practice, he contends, has moved overwhelmingly in one direction. “It’s all been in favour of the president,” he says, stressing that over time presidents have asserted “greater and greater and more extravagant and extravagant uses of force without congressional authorisation.” The repetition in his phrasing is telling. It underscores the cumulative nature of this expansion, suggesting not a single rupture or constitutional crisis, but a slow accretion of authority through repeated action and repetition.
Congress, in Goldsmith’s telling, has played a largely passive role in this transformation. Although formally vested with the power to declare war, it has “basically acquiesced” to presidential initiative. Even the War Powers Resolution of 1973, frequently cited as a legislative effort to reclaim authority from the executive, is dismissed by Goldsmith as “Swiss cheese” that “has not proven to be much of a check on the president.” The metaphor is revealing. The statute is not merely weak, but riddled with gaps through which executive discretion easily passes. Goldsmith does not deny that Congress possesses tools to resist presidential overreach, such as funding restrictions, oversight, and conditions on military action. Yet he treats their use as episodic and politically contingent rather than structurally reliable.
This dynamic leads to one of the central tensions in the discussion, namely the legal significance of practice itself. Bauer presses Goldsmith on whether presidential action, when repeatedly unchallenged, effectively becomes law. He frames the issue starkly, asking whether presidents “get away with it because the political process just is simply not structured to respond effectively,” and whether that success “has legal significance that you didn’t respond in that situation to the claim of authority that I, the president, made.” Goldsmith’s response is cautious but revealing. He acknowledges that, in theory, long standing practice could be argued to “liquidate the meaning of the Constitution in separation of powers,” particularly if Congress is deemed to have acquiesced. Yet he also notes that such an argument would be fiercely contested, especially given Congress’s insistence that silence does not equal consent and that the War Powers Resolution represents an ongoing objection rather than surrender.
Crucially, Goldsmith separates this theoretical constitutional debate from practical reality. Even if one could construct a sophisticated argument about liquidation and acquiescence, he insists that “the courts aren’t going to adjudicate this.” As a result, the real law governing presidential uses of force is not constitutional text interpreted by judges, but a body of executive branch opinions that “now constitute a body of precedent that drives executive branch decision making.” This admission is striking. Law, in this domain, is effectively generated by the very institution whose power it is meant to restrain. Judicial review is absent, congressional resistance is inconsistent, and executive interpretation becomes self reinforcing through repetition and institutional memory.
Bauer raises the obvious concern that such a system is inherently self serving. Presidents, he suggests, are able to “order up these legal opinions,” shaping the legal debate to fit their preferences and political objectives. Goldsmith resists the implication that executive branch lawyers function merely as rubber stamps. He notes that “there are lots of instances of executive branch lawyers saying no to the White House.” Yet he concedes that the dynamic changes fundamentally when national security is invoked. In such cases, the accumulated weight of precedent and the perceived urgency of presidential judgement make refusal exceptionally difficult. “When the president decides that he thinks he needs to use force,” Goldsmith explains, “it’s very hard for lawyers in light of all those precedents and all those opinions… to say no.”
This difficulty is further compounded by the substantive content of the executive branch’s legal doctrines, particularly the elastic concept of national interest. As Bauer observes, Secretary Rubio repeatedly invoked national interest as the justification for the Venezuela operation, defining it expansively to include drug trafficking, Hezbollah presence, regional stability, and economic concerns. Goldsmith’s assessment of this justification is damning in its implications. “There’s no declared boundary in the OLC opinions,” he states. National interest has been invoked across a “long list” of contexts, including self defence, humanitarian concerns, and regional security, and “the list doesn’t purport to be exclusive.” Indeed, he notes, “they’ve been adding to them in recent decades.”
What emerges from this analysis is a doctrine that carries what Goldsmith calls “the patina of legal analysis” without meaningful constraint. Aside from the narrow caveat concerning “significant boots on the ground with significant presence that poses a significant threat to US troops,” he sees no real limits on what can qualify as national interest. This conceptual flexibility allows almost any foreign policy objective to be reframed as a legal justification for force. As Goldsmith observes, a president could plausibly maintain that “it is in the national interest of the United States… to ensure that no regimes take hold south of our border… that we deem hostile.” Historical precedent, particularly the long history of United States intervention in Central and South America, only reinforces this permissiveness.
Goldsmith’s scepticism culminates in one of the most provocative moments of the discussion, where he questions the value of legality itself in debates over war powers. “Immediately after these operations happen,” he says, “we immediately jump to the law and commentators immediately say this is illegal… or they defend it as being lawful.” He continues, “I frankly think it’s kind of a meaningless debate in almost every circumstance.” This is not a rejection of law as such. Rather, it is a claim that legal argument has become disconnected from the mechanisms of actual constraint. Without judicial enforcement or sustained congressional resistance, legality functions more as rhetoric than as rule.
Bauer responds by questioning whether abandoning legal debate altogether risks conceding too much. He asks whether it is not “important that anybody actually cares enough to raise the question of whether something is legal,” warning that if legality “passes completely from the dialogue,” society may drift “completely outside the zone of any concern for law.” Goldsmith’s reply is nuanced. He does not discourage legal argument, acknowledging that “law is the language through which we criticise presidential uses of war powers.” However, he remains doubtful about its practical efficacy. “I’m just not sure what purpose it serves,” he admits, given the absence of judicial review and the dominance of executive precedent. At best, legal rhetoric may influence political discourse. At worst, it may obscure the true locus of power.
This emphasis on politics over law sets the stage for the second major theme of the discussion, the legal consequences of Maduro’s capture and prosecution. Here, Goldsmith’s tone shifts from scepticism to doctrinal confidence. Unlike war powers, criminal jurisdiction and trial procedure occupy what he describes as a “much more clearly defined zone of law.” Drawing on precedents such as the Noriega case, Goldsmith systematically dismantles potential defences based on the manner of Maduro’s arrest. Under the Ker Frisbie doctrine, he explains, “the circumstances in which the person is brought to trial do not impact due process.” What matters is the fairness of the trial itself, not the legality of the apprehension.
Arguments grounded in international law fare little better. The United Nations Charter, Goldsmith notes, is unlikely to succeed as a defence because it is “not self executing and didn’t confer individual rights,” a conclusion consistent with prior case law. Claims of head of state immunity, while superficially more compelling, are also unlikely to prevail. Courts accord “extraordinary deference” to the executive branch on questions of recognition and immunity, and Goldsmith suggests that even a recognised head of state could be denied immunity if the executive so determined. The overarching lesson is that once within the United States judicial system, a defendant’s prospects are governed by well settled doctrines that strongly favour prosecution.
The contrast between these two domains, war powers and criminal law, is instructive. In the former, legality dissolves into politics. In the latter, doctrine asserts itself with force and clarity. This asymmetry reveals something fundamental about the constitutional structure of the United States. War powers lie at the intersection of foreign affairs and national security, areas historically resistant to judicial oversight. Criminal prosecution, by contrast, sits comfortably within the judiciary’s institutional competence. The result is a system in which the most consequential exercises of state power, particularly the decision to use force abroad, are the least legally constrained.
The discussion closes on a bleak and sobering note. Reflecting on the broader implications of the Venezuela operation, Bauer observes that “this is not only where we are, but where we have been for a long time.” Goldsmith agrees. “The president gets to decide how to use military force abroad, and that’s where we are.” The simplicity of the statement belies its constitutional significance. It suggests that whatever the formal allocation of powers in the constitutional text, the effective constitution of war powers in the United States has been rewritten through practice, precedent, and political accommodation.
SOURCE :- SRI LANKAN GUARDIAN
