Trump’s Outrageous Designs on Greenland and Panama

The threatened acquisitions are un-American and unconstitutional.

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I’m happy to present Talking Feds Substack’s first guest essay. It’s by Richard Bernstein, a brilliant constitutional scholar and lawyer whom I’ve known for 35 years, since we clerked together at the Supreme Court. Since retiring from his law firm, Rich has been very involved in a lot of the most important constitution litigation of the last several years, including the presidential immunity case in the Supreme Court. Rich writes at Society for the Rule of Law.

Rich’s essay takes aim at Trump’s imperialist ambitions – or maybe they’re just a gambit – to acquire Greenland and the Panama Canal. It’s the sort of bellicose aggression that we associate with authoritarians like Vladimir Putin and that cut completely against the grain of American values and traditions. Rich explains the essential un-American nature of Trump’s territorial saber-rattling before proceeding to a legal analysis that concludes that Trump’s threatened acquisitions would be unconstitutional. I hope you enjoy it.

Let me know if you like the idea of inviting guest authors to contribute essays. If you do, we will do them more often.

Talk to you later.

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Trump’s Outrageous Designs on Greenland and Panama

By Rich Bernstein

Colin Powell said that when America’s great military fought foreign wars beyond our borders, it was for freedom, and “the only land we ever asked for was enough land to bury our dead. And that is the kind of nation we are.” Let us be honest with ourselves: In a free and fair election, the American people have elected as our commander-in-chief a President, Donald Trump, who recently has espoused a potentially very different view about the use and threatened use of America’s military abroad.

President Trump invoked “National Security” and stated that “the ownership and control of Greenland is an absolute necessity” and that “we will” be there. And President Trump threatened to “demand that the Panama Canal be returned to the United States of America, in full, quickly and without question,” invoking rationales that The Wall Street Journal later debunked. (See WSJ, “Will Trump Invade Panama?”, Dec. 24, 2024) President Trump also posted an image of the “United States Canal.” Perhaps President Trump is merely offering to initiate negotiations for purchases of territory at full and fair prices – offers that Greenland and Panama are free to decline without military consequence. But another possibility is that President Trump is threatening military action that would take territory from another country. So far, President Trump has not removed the military possibility.

In the current circumstances, American military action to acquire all of Greenland or part of Panama would be both wrong and unconstitutional. Although smaller in scale and destruction, as a matter of morality, any American attack on Greenland or Panama would not be different in kind from Russia’s war on Ukraine or China’s threatened attack on Taiwan. A militarily stronger nation would be waging a war of acquisition based on nothing more than might makes right. Moreover, an American war of acquisition would be unconstitutional without congressional authorization.

A WAR OF ACQUISITION IS A ROBBERY

What Jesus said of people is true of nations: “For what shall it profit a man, if he shall gain the whole world, and lose his own soul?” (Mark 8:36) Jesus himself embodied the antithesis of the might-makes-right principles of that era’s conquering superpower, the Roman Empire. (See Mark 10:42-45) America should not emulate the Roman Empire.

As President Ronald Reagan wrote in his 1983 Loyalty Day Proclamation: “America is great because it is good, and if America ever ceases to be good, America will cease to be great.” America established the first government of the people, by the people, and for the people. We established an enforceable written Constitution that guaranteed the rule of law, and rights that no government could take away, including dissent and freedom of religion. In doing so, our Constitution rejected that might makes right.

In particular, in 1850, the Supreme Court unanimously held: “[T]he genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression and aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens.” (Fleming v. Page, 50 U.S. 603, 614 (1850) This reflects that the only military purposes to which the Constitution refers are “toprovide for the common defence” and protect “against invasion.”

Sometimes defending the rule of law and freedom requires war and horrible sacrifices. We fought a Civil War that killed more than 620,000 Americans to preserve our Republic and rid our country of slavery. We fought another war, World War II, that killed over 407,000 Americans in defeating fascist aggression. After World War II, we and the rest of the civilized world agreed that might make right was no longer acceptable. The world agreed that millennia of wars of aggression for acquisition of territory were morally wrong and should stop. We agreed that militarily strong nations should no longer launch wars – or even threaten to launch wars – against smaller ones based on pretexts to acquire territory.

As Colin Powell said, our military fights for freedom, not to steal from others. Not a single one of our beloved American soldiers should die, or kill, in a war to acquire territory.

Of course, there are also pragmatic reasons not to attack Greenland and Panama. Among them is that we would lose vital allies, and our authority to lead an alliance against an actual aggressor nation that threatened our freedom. And colonial imperialism has never ended well. The history of the two World Wars suggests that any new round of wannabe colonial empires (presumably, the United States, China, and Russia) would end with the empires fighting each other. In the 21st Century, that ultimate end game would risk nuclear war.

But even if America would only profit without any tangible cost from launching a war to acquire all of Greenland or part of Panama, I’m with Jesus. Let’s not lose our national soul. Not for Greenland, Panama, or any other nation’s territory.

WITHOUT CONGRESS, ACQUIRING FOREIGN TERRITORY IS UNCONSTITUTIONAL

The American people did not vote for a war to acquire territory in Greenland or Panama. Nor have their representatives in Congress. Art. I, Sec. 8, Cl. 11 of the Constitution vests in Congress the power “To declare War.” For two reasons, express congressional authorization is necessary before any potential war of acquisition in Greenland or Panama. First, no exception from the power of Congress to declare war is warranted for a war of acquisition, much less in these circumstances. Neither Greenland nor Panama has posed a threat to attack our interests. And as to both, there is not remotely any imminent circumstances that would justify unilateral military action by any President without congressional authorization.

Second, acquiring foreign territory by war requires congressional authorization. Even when Congress declares war, that declared war “can never be presumed to be waged for the purpose of conquest or acquisition of territory.” (Fleming v. Page, 50 U.S. at 614) Accordingly, even when Congress declares war, this does not “imply an authority to the President” to acquire territory. (Id.) Rather, without express congressional action by treaty or statute, any occupied territory even in a declared war constitutes “the territory of a hostile foreign nation.” (Id. at 615) Making that occupied territory part of the United States “can be done only by the treaty-making power or the legislative authority.” (Id) Thus, even with a declaration of war, to make foreign territory a part of the United States under our Constitution requires a ratified treaty (which requires 2/3 approval in the Senate) or a statute passed by both houses of Congress.

Accordingly, if the incoming Administration wants the power to wage war in Greenland or Panama to acquire territory, the Constitution requires that it obtain formal authorization from the people’s representatives in Congress. For the sake of America’s soul and America’s role as the worthy leader of the free world, Congress should say no to any potential American war of acquisition in Greenland or Panama. Senators should start by asking President Trump’s national security nominees whether the Administration will come to Congress before attacking Greenland or Panama and, if not, what possible constitutional justification the Administration has for failing to do so.