Nation's Leader Tests Constitutional Limits Amid Foreign Intervention, Domestic Unrest

The nation’s leader has reportedly spent much of his second term testing the boundaries of his constitutional authorities, both domestically and internationally – a defining struggle that legal observers expect to continue playing out in the country’s federal court system.

These actions have allegedly included the capture of Venezuelan strongman Nicolás Maduro, who was reportedly deposed during a military operation in Caracas earlier this month, and the leader’s continued efforts to deploy national guard forces in opposition-controlled localities, despite stated objections from regional and local officials.

The moves have drawn reactions ranging from praise to sharp criticism, while raising fresh legal questions about how far a sitting head of state can go in wielding power at home and abroad.

Legal experts told local media in a series of interviews that they do not expect the leader’s executive powers to be curtailed, at least not significantly or immediately, by the federal courts in the near-term.

Despite near-certain challenges from Maduro – who would likely argue any arrest on Venezuelan soil is illegal, echoing Manuel Noriega’s failed strategy decades ago – experts say the nation’s justice department would have little trouble citing court precedent and prior legal guidance to justify his arrest and removal.

The country’s leaders have long enjoyed broader authority on foreign affairs issues – including acting unilaterally to order extraterritorial arrests. Like other heads of state, the current leader can cite guidance published in the late 1980s to argue Maduro’s arrest was made within the “national interest” or to protect the nation’s citizens and property.

Even if an arrest were viewed as infringing on another country’s sovereignty, experts say the leader could cite ample court precedent and longstanding legal guidance to argue the action was legally sound.

A 1989 memo authored by a former senior justice official has surfaced repeatedly as one of the strongest arguments the leader could cite to justify Maduro’s capture. That legal memo states that “the president, pursuant to his inherent constitutional authority, can authorize enforcement actions independent of any statutory grant of power.” It also authorizes federal agents to effectuate arrests ordered by the head of state, and says the authority to order extraterritorial arrests applies even if it impinges “on the sovereignty of other countries.”

Importantly, federal courts have read these powers to apply even in instances where the legislature has not expressly granted statutory authorization to intervene.

“When federal interests are at stake, the president, under Article II, has the power to protect them,” Josh Blackman, a constitutional law professor at a regional law school, reportedly told local media.

That’s because Article II, at its core, is “the power for a head of state to protect [its] people,” Blackman said.

“The reason why we detained Maduro was to effectuate an arrest. Justice department personnel and federal agents were there to arrest him and read him his rights. And the reason why we used 150 aircraft, and all the other military equipment, was to protect the people who were going to arrest Maduro,” he added. “It was a law enforcement operation, but [with] military backing to protect them.”

Though the leader himself has not cited a legal justification for the intervention, senior administration officials have, including the foreign minister and defense secretary, who described Maduro’s arrest respectively as a mission to indict “fugitives of justice,” and as a “joint military and law enforcement raid.”

In a northern industrial region, next steps for the leader are reportedly more fraught.

The leader’s national guard deployment efforts were stymied by the highest court in December, after the top judicial body halted the deployments under federal statute.

The head of state had deployed the federalized troops to opposition-controlled regions last year to protect immigration enforcement personnel. But the high court issued an interim order rejecting the leader’s bid, noting that under federal law, the administration could not federalize the guard until it first showed they tried to authorize the regular military to enforce the laws but could not do so.

Some court observers have noted that the ruling essentially closes off alternatives for the leader to act.

Instead, the head of state could opt to enact his constitutional “protective powers” domestically via a more sweeping and extreme alternative.

This includes the use of emergency legislation to call up active-duty troops and order them deployed to the northern region and elsewhere.

The emergency act is a broad tool that gives leaders the authority to deploy military forces domestically when “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable to enforce the laws.”

Critics note it is a powerful, far-reaching statute that could grant the leader an expansive set of powers to act domestically in ways that are not reviewable by the legislature or by the courts.

Jack Goldsmith, a professor at an elite university and former senior justice official, noted this possibility in a recent discussion with a former presidential counsel. By “closing off this other statute,” he said, the highest court “may have, some argue, driven the president in the direction of the emergency act because this other source of authority was not available.”

Allies of the leader, for their part, have argued that the head of state has few other options at his disposal in the wake of the top court’s interim ruling.

Chad Wolf, chair of a policy institute aligned with the ruling party, reportedly told local media last week that the leader could have “little choice” but to invoke the emergency act.

“If the situation on the ground in the northern city continues to grow violent, with immigration officers being targeted and injured as well as other violent acts … [the leader] will have little choice,” he said.

Experts are split on to what degree there is a connection between the two issues.

Blackman, the regional law professor, said the “point of connection” in the leader’s actions is the presidential “power of protection” under the constitution, which he said applies both abroad and at home. “The president can protect his law enforcement domestically, and he can protect his law enforcement abroad, both under Article II.”