#25 - Venezuela's New Year's Present
War Powers Debates Intensify
Welcome to the first Lex Liberas newsletter of 2026! The year is off to a fiery start, with the recent Venezuelan military operation taking center stage in current constitutional debate. This and many more hidden gems from the past week are listed below. As always, you can expect a Friday post covering a current constitutional debate in-depth, which you can sign up for below.
After that, please consider sharing this post with a friend.
Alright, let’s get into it. Happy New Year!
News Desk - This Week’s Top Ten Headlines
Trump Administration Offers Layers of Legal Reasons for Regime Change
The Trump administration’s recent capture of Venezuelan President Nicolás Maduro and announcement of temporary U.S. oversight of the country has sparked a debate over the legal foundations of the de facto regime change. Upon learning of the operation, public officials such as Senator Mike Lee (R-UT) demanded to know the legal rationale behind the move. Officials in the administration have advanced multiple justifications, framing the action primarily as a law enforcement effort to apprehend an indicted narco-terrorist rather than an act of war. Maduro was indicted in 2020 for leading the Cartel de los Soles. Secretary of State (and perhaps acting leader of Venezuela) Marco Rubio stated that the operation targeted a criminal figure who had illicitly seized control of a state, labeling Maduro a narco-terrorist. This characterization seeks to position the strikes and extraction as merely extraterritorial enforcement of domestic criminal law, which likely falls under the President’s inherent Article II powers. Leading up to the regime change, and especially during the drug boat strikes, the administration relied on the evergreen national security line of reasoning, pointing to drug trafficking, Venezuela’s disputed elections, and broader interests in the stability of the Maduro regime. Constitutional experts like Bernie Sanders, - who has repeatedly called for abolishing entire sections of the document - remain certain that “President Trump does not have the constitutional authority to attack another country.” As the debates unfold and doubtlessly transition to litigation, Maduro has arrived in New York City to face a trial from his hemispheric peers, who will assuredly be sympathetic to his case.
DOJ Releases Memo Against Alien Use of Federal Welfare Programs
In a significant shift prompted by the Supreme Court’s 2024 ruling in Loper Bright, the DOJ’s Office of Legal Counsel (OLC) released a memorandum opinion last month concluding that the term “Federal means-tested public benefit” in a 1996 Welfare statute encompasses benefits from both mandatory and discretionary federal spending programs. The 28-page opinion, authored under newly-appointed Assistant AG Elliot Gaiser, declares that the phrase’s “best reading” is its plain meaning: any federal public benefit where eligibility or amount is determined by income, resources, or financial need—regardless of funding source. This reverses the Clinton-era OLC view, which deferred to agencies to limit the alien eligibility restrictions to mandatory programs only, allowing broader access to discretionary benefits for non-qualified immigrants. Citing Loper Bright and a reassessment of statutory text, structure, and purpose (while refusing to use legislative history), the memo argues that Congress intended to weaken alien reliance on public benefits to deter illegal immigration. Alarmingly, the memo cites estimates that 59% of illegal-alien-headed households currently receive welfare benefits. As federal agencies begin implementing this new interpretation, the consequences are as effective, albeit not as permanent, as legislative action.Supreme Court Announces February & March Oral Arguments Schedule
The Court announced its February argument session calendar on Friday, covering February 23 to March 4, and featuring seven cases. Among the seven are United States v. Hemani (March 2), which challenges the constitutionality of a federal law prohibiting users of certain controlled substances from possessing firearms. Lower courts dismissed the case under Second Amendment protections, but the government, led by the Trump administration, will argue the history and tradition of gun regulations on drunkards and substance users are on its side. This leaves the remaining unheard cases to sessions in March and April, including the challenge to President Trump’s birthright citizenship order.Chief Justice Roberts Releases Annual Federal Judiciary Report
To close out the final day of 2025, Chief Justice Roberts released the annual year-end report on the federal judiciary. The Chief, a former Harvard history major, styled the 13-page report as a history-focused reflection ahead of the nation’s 250th anniversary rather than directly addressing contemporary issues. The document centers on the Declaration of Independence’s 250th anniversary and Thomas Paine’s publication of the enormously influential Common Sense. Roberts ties this to judicial independence and its “counter-majoritarian check” on the political branches, and adds examples of this norm throughout American history, including the acquittal of Justice Samuel Chase in 1805, which protected judges from removal over unpopular decisions. Quoting President Coolidge, he notes that the Declaration and Constitution “remain firm and unshaken” today despite modern history’s increased partisanship, and gently reminds judges to decide cases impartially. The report also recaps some federal judiciary statistics, including rises in civil cases against the government and criminal defendants. Unlike last year, there was no strongly-worded reprimand to “unnamed” political officials for raising the “specter of open disregard for federal court rulings.”
Former Judge Dugan Resigns.
Judge Hannah Dugan Resigns Following Felony Conviction
Milwaukee, Wisconsin Judge Hannah Dugan officially resigned yesterday following her December federal jury conviction on the felony charge of obstructing immigration agents. In April, Dugan confronted federal officers at her courthouse and directed an undocumented Mexican immigrant through a private door to evade arrest. She was acquitted on a related misdemeanor concealing charge, but her felony conviction led to a choice of resigning or facing the loss of her position from the state. Facing imminent impeachment proceedings by Wisconsin lawmakers and ongoing appeals, Dugan submitted her resignation letter to Governor Tony Evers in an effort to signal her commitment to judicial independence despite, which some may say she had failed to live by. The former judge was suspended without pay since her arrest, and faces up to five years in prison at sentencing, though as a first-time nonviolent offender, such significant incarceration is unlikely. Her defense continues to challenge the verdict.First Circuit Reprimands District Judge (Again)
In a remarkable case of déjà vu, the First Circuit once again rebuked District Judge Indira Talwani on Tuesday by staying her preliminary injunction against the One Big Beautiful Bill Act’s defunding of Planned Parenthood’s Medicaid reimbursements. The appeals panel ruled that the Trump administration made a strong showing of likely success on the merits and that the law is sufficiently clear under the Spending Clause, operates prospectively, and falls within routine Medicaid adjustments (no, surprisingly, the sky is not falling). The court cited its very recent decision vacating Talwani’s similar injunctions in an arguably identical Planned Parenthood case. The stay allows the defunding to proceed pending full appeal.Court of Appeals Rules Against Anti-Racism Training Under 1st Amenment
A full, en banc Eighth Circuit ruled 6-5 in favor of reviving a First Amendment lawsuit by two employees of a Missouri public school, who alleged that the district’s mandatory “equity training” program compelled their speech and chilled any dissenting views on race and privilege. The majority found that the employees established standing through evidence of self-censorship caused by threats of professional development credit losses, pay deductions, or removal from sessions for being “unprofessional,” as well as online modules requiring selection of district-approved answers on anti-racism topics. This reverses a lower court’s dismissal of the case and vacates a prior $312,000 award against the plaintiffs. The court remanded for further proceedings, emphasizing that public employees do not shed free speech rights during such trainings. The program, now discontinued, included mandatory acceptance of “white supremacy” as “the all-encompassing centrality and assumed superiority of people defined and perceived as white,” and listed colorblindness, calling the police on black people, and reverse-racism as “covert white supremacy.”Trump Administration Sues Virginia Over Illegal Alien Tuition Use
On the Monday following Christmas, the DOJ filed a lawsuit against Virginia in federal court, challenging the state’s laws that allow illegal immigrants to qualify for in-state tuition and certain financial aid at public colleges and universities. The complaint argues that Virginia Code §§ 23.1-502 and 23.1-505.1 violate federal law prohibiting states from granting residential postsecondary education benefits to illegally present aliens unless the same benefits are available to all U.S. citizens regardless of residency. The federal law effectively prohibits discriminating against out-of-state American citizens who pay higher rates. Illustrating this point, the complaint cites the price difference between in-state beneficiaries at the University of Virginia ($23,897), which currently includes illegal aliens, and their out-of-state counterparts, who pay $62,923. The DOJ seeks a declaration of preemption under the Supremacy Clause and a permanent injunction. This marks the seventh such challenge by the administration against similar policies in other states.
DOJ Files Motion to Extend Time in Boasberg Case
Another week, another order in Judge James Boasberg’s ongoing effort to investigate the Trump administration’s deportation policies. At 8:00pm today, the DOJ requested a seven-day extension to respond to Judge Boasberg’s court order of last week. The motion cited the dramatic changes in Venezuela, noting that the evolving situation requires additional time to assess any remedies for the Venezuelan plaintiffs.Federal Court Blocks Deportation of British Activist
The day following Christmas brought Imran Ahmed a belated present in the form of a delayed deportation. A federal court in New York issued a TRO blocking the Trump administration from detaining or deporting the British activist and CEO of the Center for Countering Digital Hate. Ahmed, a legal permanent resident living in Washington with his citizen wife and child, sued over recently implemented visa restrictions. Secretary of State Rubio warned that Ahmed and four other Europeans have coerced U.S. tech platforms to censor American speech, resulting in adverse foreign policy consequences. Ahmed, who apparently does not view any of his speech as “disinformation,” claims his free speech rights are under attack, and will likely fight any future appeals.
Picks of the Week - Articles Worth Your Time
On the Legality of the Venezuela Invasion
By Jack Goldsmith for Executive Functions
As the subtitle suggests, the military operation falls cleanly within recent precedent.
Revealing Other Justices’ Votes in Trump v. Illinois
By Richard Re for Divided Argument
Examines the breakdown of votes in the Supreme Court’s National Guard decision.
Is the President Subject to the Posse Comitatus Act?
By Josh Blackman for the Volokh Conspiracy
For more on this question and the 2025 Guard deployments, see my Friday piece:
Quote of the Week
“Judge Boasberg wants hearings for deported gangsters that can’t be found in a country that currently has no organized government to help DOJ/DHS locate them..”
Prof. Rob Luther
Quick Notes
In lieu of the usual paper recommendations, I will instead cover the Venezuela timeline and its legal connotations in a shorter fashion than my usual Friday articles, as the situation remains ongoing and unlikely to lead to any meritorious litigation.
A recent post from Prof. Steve Vladeck raises five questions over the matter, and while Vladeck paints them as having no easy answers, many more scholars would beg to differ. Without further ado, here are some simplified responses to what Vladeck sees as the five major questions around the Venezuelan regime change’s legality.
What Arguments is the Administration Making?
Vladeck has this mostly correct: the current line of argument rests on Maduro’s indictment to paint the operation as more domestic than foreign.
Why Are These Unpersuasive?
They’re not. Quite the opposite, in fact.
Vladeck raises three main objections: sovereignty violations, a bootstrapping/slippery slope argument, and lack of precedent. Each is less and less persuasive, rendering the administration’s arguments, by default, more persuasive.
Sovereignty Violations and International Law
Vladeck correctly notes the operation breached Venezuela’s national sovereignty and likely violates the U.N. Charter. The administration has not seriously contested this on international grounds, echoing a 1998 Bill Barr memo’s explicit separation: violations of international law do not invalidate domestic authority. As Jack Goldsmith notes, the DOJ has long held that the Charter does not constrain executive power domestically. Courts rarely second-guess such separations in use-of-force cases, so no viable judicial pathway exists to challenge the actions taken here if they fall into the domestic extradition bucket. Also, let’s not pretend international law presents some high and mighty standard above our own Constitution. If it violates the U.N Charter but not the U.S. Constitution, then what does that say of the U.N. Charter?Bootstrapping and Slippery Slope
Vladeck takes issue with framing the operation as defensive when he sees it as clearly offensive in nature. To be sure, framing military force as “protection” for civilian arrests appears circular at first glance, yet this approach flows directly from prior precedents. As explained in Prof. Goldsmith’s article above, presidents possess inherent constitutional authority to protect federal officers, a principle best seen in In re Neagle. Similarly, unit self-defense constitutes a standard military rule, which permits the use of force to counter threats to U.S. personnel even when operating in foreign sovereign territory without the host nation’s consent. Moreover, Vladeck’s appeal to the Founders’ wariness of concentrated military power - entirely expedient - ignores the reality that their understandings of war, no matter how right, have been significantly tempered by modern congressional laziness, which has enabled the maintenance of a vast global force subject to minimal congressional oversight. As for the old slippery slope argument, even Prof. Vladeck must admit this as his weakest point due to its logically fallacious nature.Precedent and Distinguishability from Panama
In an attempt to argue that the main precedent supporting the operation does not apply, Vladeck tries to distinguish Operation Just Cause in Panama due to its declared state of war and the killing of a U.S. Marine. While those facts are not present in Venezuela, the core rationale still applies: arresting an indicted leader (Noriega in Panama) with military support based on protecting U.S. interests/personnel. Courts upheld Noriega’s prosecution and rejected his head-of-state immunity because the U.S. did not recognize him as legitimate, another similarity to its treatment of Maduro. Prof. Jonathan Adler lists several precedents (from the Barbary pirates to more modern interventions) supporting unilateral force in the “national interest” one of his recent articles, including protecting persons and property and countering threats similar to the newly-coined narco-terrorism.
What’s Next for Maduro?
A trial, and ideally an end fit for a dictator. See Story #1 above.
What’s Next for Venezuela?
This is a foreign policy question that only time can rightly answer.
What Happens to the Alien Enemies Act Litigation?
See Story #9 above.
Two final points: First, simply because the operation likely passes legal muster does not make it a beneficial or negative policy decision. Those are questions of politics and foreign policy that have little to do with this blog. Last, and most importantly, the legal ground and precedents the operation relies on date back - at the latest - to the middle of the 20th Century, more than 150 years after the Constitution was written. Under an originalist framework, declaring that anything so recently grafted into the American constitutional tradition is definitively constitutional is unwise. In other words, military operations may be normatively constitutional, but this does not make them strictly constitutional under the expectations of America’s Founders.
Thank you very much for reading. Please like or comment, and I’ll be back Friday!
In liberty,
Ethan Savka