Erwin Chemerinsky on Venezuela, War Powers, and the High Stakes of Unchecked Executive Action
JUDJ-Prepared Summary from December 10, 2025 | The Constitution in Crisis: What’s at Stake for American Democracy. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Erwin Chemerinsky—Dean of UC Berkeley School of Law and one of the nation’s leading constitutional law scholars—joined the program to examine urgent legal questions raised by the Trump administration’s recent actions involving Venezuela. The conversation focused on how quickly presidential power can expand when framed as “national security,” and what happens when foreign-policy decisions push beyond both international law and the U.S. Constitution’s system of checks and balances.
A Tanker Seizure and a Bigger Constitutional Question
The interview began with reports that the United States seized an oil tanker connected to Venezuelan waters, reportedly tied to past activity involving Iranian oil. Chemerinsky argued that, on the facts presented publicly, such a seizure is highly unusual and likely unlawful under international rules governing state conduct at sea. His broader point was even more direct: absent a war or clear legal authorization, the U.S. has no general right to seize another country’s vessels.
That immediately raised a core constitutional issue. Chemerinsky emphasized that the president may cite commander-in-chief authority, but that power is not limitless. The Constitution gives Congress the power to declare war, and modern practice—such as the post-9/11 Authorization for Use of Military Force—illustrates how presidents typically rely on some form of congressional approval when using military force.
“Acts of War” Without Authorization
Chemerinsky characterized the tanker seizure as an “act of aggression” and warned against normalizing unilateral executive action that resembles warfare. He noted that when war is formally declared—or at least authorized by Congress—actions like firing on enemy vessels or seizing enemy property can be legal in a wartime context. The problem, he argued, is that these actions are occurring without that predicate.
In other words, the question is not simply whether an administration can craft a rationale. It is whether the president is effectively engaging in warlike conduct without any democratic or constitutional accountability.
A Pattern of Escalation
The tanker incident, Chemerinsky suggested, should be viewed as part of a larger pattern of escalating executive behavior toward Venezuela. He pointed to earlier attempts to invoke the Alien Enemy Act of 1798—a statute intended for wartime conditions—to enable summary deportations. Courts have pushed back against that approach, but the larger theme remains: a willingness to stretch or bypass long-standing legal constraints.
He also discussed reports of U.S. attacks on boats suspected of drug trafficking, describing the practice as a sharp departure from previous administrations, which generally emphasized interdiction and arrest. When vessels are destroyed and people are killed, he argued, the government has effectively imposed a death sentence without due process—a profound legal and moral break from ordinary standards.
The Second Strike and the Question of Accountability
A particularly disturbing point in the interview involved reports of a second strike on a vessel after survivors were visible. Chemerinsky argued that even if the first strike is debated under U.S. law, a second strike aimed at individuals clinging to wreckage—if they posed no threat—would be clearly impermissible and could amount to homicide. He noted that while the Supreme Court’s ruling in Trump v. United States shields a president from criminal prosecution for official acts, military officials and other subordinates can still face criminal and civil liability if they carry out unlawful actions.
International Law: Real Limits, Weak Enforcement
Chemerinsky underscored that international courts may offer a forum for complaints, but enforcement is often uncertain—especially when major powers do not submit to certain jurisdictions. Still, he argued, international proceedings can carry rhetorical force and help document abuses, even when immediate legal consequences are unclear.
The Warning
By the end of the segment, the stakes were unmistakable: when executive power expands through force abroad, the damage can be lasting—both to human life and to constitutional norms at home. Chemerinsky’s message was a cautionary one: the rule of law matters most when leaders insist they are exempt from it.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.