–José Ignacio Hernández, Visiting Scholar, Boston College Law School
The capture and extraction of Nicolás Maduro by U.S. government forces in the early hours of January 3, 2026, raised many legal questions from both the U.S. and international law perspectives.[1]
But what is the situation under Venezuelan constitutional law? Although the events are still unclear, a few hours after Maduro´s capture, the Constitutional Chamber of the Supreme Tribunal provided a legal solution that resembles a key component of the Venezuelan undemocratic regime: constitutional authoritarian populism. The Chamber’s decision disregarded the Venezuelan constitution’s rules on presidential absence and succession, instead (illegally) allowing Maduro’s Vice President to serve as acting president indefinitely.
Venezuela’s Constitutional Framework for Presidential Vacancies
Articles 233 and 234 of the Venezuelan Constitution provide a clear framework regarding the presidential vacancies:
- When the President cannot exercise the powers of the Presidency for any reason (for instance, due to travel abroad), a temporary vacancy occurs. In that case, and without any formality, the Vice President will serve as acting or interim President for 90 days, the term to be extended by resolution of the National Assembly for the same period.
- If the vacancy is permanent, the Vice President will serve as interim President, but presidential elections should be called within the next 30 days.
- The Constitution establishes the limited causes for a definitive vacancy in the following cases: death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; recall by popular vote and when a temporal vacancy exceeds 180 days, if the National Assembly declares that the vacancy is permanent.
Aside from the legal considerations on the U.S. operation, Nicolás Maduro cannot exercise the Presidency because he will be a defendant against criminal charges brought before the Federal District Court for the Southern District of New York.[2]
Under the Constitution, one possibility is to consider that this absence should be treated, at least, as a temporary vacancy for 90 days, extended by resolution of the National Assembly for the same period. This rule reasonably implies that only one extension is allowed. Consequently, if Maduro does not return within this timeframe, the National Assembly should declare the vacancy permanent.
However, this solution is not rational because, under the current circumstances, Maduro will not be able to return to Venezuela within the next 180 days. Hence, another possibility is to consider that Maduro abandoned his position, allowing the National Assembly to declare a permanent vacancy.
An advantage of this interpretation is that, within 30 days of the National Assembly’s resolution, presidential elections should be called.
If the Venezuelan Constitution had been in force, the permanent vacancy would have been the solution to the current situation.[3]
The Supreme Tribunal and Constitutional Authoritarian Populism: Inventing the Extra-Constitutional Concept of “Forced Absence”
Setting aside Maduro´s lack of legitimacy, within the constitutional framework, Maduro’s absence should have been viewed as a permanent presidential vacancy, enabling Vice President Delcy Rodríguez to serve as Acting President until elections are held.[4]
However, this solution poses several issues for Rodriguez. Firstly, it must be acknowledged that Maduro is no longer acting as President, although the Vice President disputes this. More importantly, a permanent vacancy should trigger a new presidential election, thereby threatening the continuity of the Venezuelan regime.[5]
To avoid those problems, the Vice President used a well-known tool of Venezuelan abusive constitutionalism: the Constitutional Chamber of the Supreme Tribunal.[6]
Just hours after Maduro’s removal, the Constitutional Chamber, acting ex officio, issued an “opinion” providing a binding interpretation of the current events in Venezuela, based on three conclusions:[7]
- The detention and removal of Nicolás Maduro are described as a foreign military attack and abduction, making it temporarily impossible for him to exercise the Presidency.
- Maduro’s absence is not considered a vacancy under the Constitution but a “forced absence.”
- Vice President Delcy Rodríguez assumes the role of acting President to ensure the “continuity of the State,” based on the so-called “constitutional and administrative continuity.”
The vacancy was not addressed through Articles 233 and 234 of the Constitution. Instead, it was handled via a non-Constitutional mechanism: a forced absence. Consequently, the Vice President is serving as Interim President, but without the constitutional limitations that generally apply.
This marks the second instance where the Constitutional Chamber has violated those Articles. The first occurrence was in January 2013, when President Hugo Chávez was ill in Cuba. To prevent a constitutional vacancy, the Chamber permitted Vice President Maduro to serve as interim President without officially declaring a vacancy. Similar to the 2026 situation, the 2013 violation was justified by the need to maintain the “administrative continuity” of the Presidency.[8]
This opinion clearly exemplifies what I refer to as “constitutional authoritarian populism”:[9]
- The Constitutional Chamber abused its judicial review power to avoid the constraints of the framework for presidential vacancies.
- These abuses have enabled Delcy Rodríguez to exercise presidential powers without electoral legitimacy and in violation of constitutional checks and balances. It is, hence, an authoritarian decision, intended to advance a political order based on the denigration of human dignity.[10]
- The authoritarian decision was justified in the protection of the national interest, that is, the Venezuelan people, because of what is considered an aggression by the U.S. Government. Therefore, the decision relies on the populist narrative.
The Persistence of the Venezuelan Authoritarian regime
So far, the U.S. intervention in Venezuela aimed at capturing and removing Maduro has not led to any real progress toward restoring constitutional order. On the contrary, it has relied on the same abuses that allowed Maduro to stay in power in 2013. Vice President Delcy Rodríguez, currently serving as Interim President based on the Constitutional Chamber’s opinion, has maintained the authoritarian regime while presenting it as “constitutional”.
Articles 333 and 350 of the Constitution emphasize that restoring the constitutional order requires reaffirming popular sovereignty as the only legitimate source of presidential authority, exercised within a system of checks and balances.[11] Neglecting the 2024 presidential election has undermined this sovereignty, strengthening Maduro’s autocratic rule, which now persists with the Vice-President unlawfully claiming to serve as Interim President.
Suggested citation: José Ignacio Hernández, Constitutional Authoritarian Populism in Venezuela after Maduro, Int’l J. Const. L. Blog, Jan. 5, 2025, at: http://www.iconnectblog.com/constitutional-authoritarian-populism-in-venezuela-after-maduro/
[1] See, for instance: Jack Goldsmith, “On the Legality of the Venezuela Invasion”, January 3, 2026, retrieved at: https://www.execfunctions.org/p/on-the-legality-of-the-venezuela?utm_campaign=post-expanded-share&utm_medium=web&triedRedirect=true.
[2] See the indictment, unsealed on January 3, 2026: https://www.justice.gov/opa/media/1422326/dl.
[3] The Venezuelan Constitution is effectively not in force because it has been de facto superseded by numerous wrongful decisions, especially after Maduro ignored the 2024 presidential election. Maduro started a new term on January 5, 2025, even though he was not properly elected in 2024. Therefore, the core issue is not Maduro’s absence but his illegitimacy, which also undermines the Vice President’s legitimacy. Regarding the various constitutional violations that led to this situation, see Brewer-Carías, Allan (2024), Crónica constitucional sobre el secuestro de la elección presidencial el 28 de julio de 2024, Caracas: Editorial Jurídica Venezolana.
[4] This would be the proper solution if Maduro were legitimately elected President. However, he was not. The results of the 2024 presidential elections show that Edmundo González, the unitary candidate, won by a substantial margin. Therefore, to reestablish constitutional order, González ought to be declared President by the Electoral Council. See Brewer-Carías (n 3).
[5] “Delcy Rodríguez strikes defiant tone but must walk tightrope as Venezuela’s interim leader”, The Guardian, January 3, 2026, retrieved at: https://www.theguardian.com/world/2026/jan/04/delcy-rodriguez-tightrope-venezuela-interim-leader.
[6] The Constitutional Chamber exercised concentrated judicial review, with the power to declare legislative acts null and void that violated the Constitution. However, since 2004, under the Presidency’s political control, the Chamber has adopted a “binding” interpretation that has changed the text and purpose of the Constitution, paving the way for the implementation of authoritarian decisions. See Urosa M., Daniela, and Hernandez G., José Ignacio, Constitutional Dismemberment in Venezuela: An Authoritarian-Populist Constitutional Change Mechanism (January 01, 2024). Boston College Law School Legal Studies Research Paper No.641, Forthcoming. Richard Albert, Ed. Comparative Constitutional Reform in Latin America. Routledge, Available at SSRN: https://ssrn.com/abstract=5086227 or http://dx.doi.org/10.2139/ssrn.5086227
[7] This opinion has not been officially published, but it has been disseminated on the government’s social network. See: https://x.com/Asamblea_Ven/status/2007649656797548974?s=20
[8] As I explained in 2013, there is no such thing as “administrative continuity” of the presidential mandate. To enable the Presidency to function when the President is absent, the Constitution established a comprehensive system for presidential vacancies. Nonetheless, the Constitutional Chamber introduced a new institution, “administrative continuity,” to circumvent the constraints of this constitutional framework. See José Ignacio Hernández, “¿Es constitucional la tesis de la continuidad?”, Prodavinci, January 5, 2013, retrieved at: https://historico.prodavinci.com/2013/01/05/actualidad/es-constitucional-la-tesis-de-la-continuidad-por-jose-ignacio-hernandez-g/. Thirteen years later, the Constitutional Chamber has once again issued the same abusive interpretation.
[9] José Ignacio Hernández G., Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience, Int’ l J. Const. L. Blog, Dec. 14, 2018, at: https://www.iconnectblog.com/2018/12/towards-a-concept-of-constitutional-authoritarianism-the-venezuelan-experience/. My analysis relies on the concept of abusive constitutionalism coined by David Landau. See: David Landau, ‘Abusive Constitutionalism’ (2013) 47-1 U.C. Davis Law Review, 189.
[10] The U.N. Fact-Finding Mission has identified multiple systematic human rights violations, including those committed by political groups under the Vice Presidency’s administrative control. See https://www.ohchr.org/en/hr-bodies/hrc/ffmv/index.
[11] The U.S. intervention in Venezuela was not justified as a move to restore democracy because it was presented as a law enforcement action, as Professor Goldsmith notes (n 1). After the intervention, President Trump stated that the U.S. could work with the Vice President. However, Delcy Rodriguez has shown no sign of collaboration so far. From a constitutional law perspective, what matters is that, until now, the U.S. government apparently has not challenged Rodriguez’s authority, now based on the abusive opinion of the Constitutional Chamber. See “US plans to ‘run’ Venezuela and tap its oil reserves, Trump says, after operation to oust Maduro”, Associated Press, January 3, 2026, retrieved at: https://apnews.com/article/venezuela-us-explosions-caracas-ca712a67aaefc30b1831f5bf0b50665e