Jonathan Adler on Venezuela Oversight: “Congress is Asleep at the Switch.”

Society for the Rule of Law Charter Member Jonathan H. Adler was in Civitas Outlook urging Congress to exercise its constitutional oversight powers regarding military activity in Venezuela.

Adler warns that Congressional oversight over presidential war-making has become increasingly limited. “Whatever the founding-era understanding, Presidents have increasingly taken it upon themselves to deploy the nation’s military without seeking congressional authorization.” Under the War Powers Act of 1973, presidents are legally obligated to give Congress notice of military action within 48 hours of initiating hostilities, and, unless Congress authorizes continued deployment, must withdraw American forces within 60 days. The Office of Legal Counsel, however, has argued that, so long as American troops are not in danger, military action does not fall within the War Powers Resolution’s authority. Adler cites the Obama Administration’s successful use of this justification for continued air strikes in Libya beyond Congress’s 60-day window. This precedent provides legal cover for Trump to justify continuing military action against Venezuelan boats today. “The Trump Administration can argue, with some force, that it is acting in accordance with established practice to which Congress has acquiesced.”

As the boundaries between making and initiating war have increasingly blurred, Adler says that the onus has fallen on Congress to act affirmatively in order to enforce constitutional limits. “It may seem incongruous that the President may initiate a de facto war against drug cartels and their supporters without a Congressional declaration of war, but unless and until Congress reasserts its prerogatives, the commander in chief will dictate when and how U.S. military force is deployed.” Unfortunately, “Congress is asleep at the switch,” and “lethargy in the legislature is no way to counter the executive’s excess energy.”

Read the article here.