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The Quasi War Cases—And Their Relevance to Whether Letters of Marque and Reprisal Constrain Presidential War Powers

37 Pages Posted: 17 Aug 2004 Last revised: 2 Nov 2009

J. Gregory Sidak

Criterion Economics, L.L.C.

Abstract

Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, Talbot v. Seeman, and Little v. Bareme is the phrase in Article I, section 8 of the Constitution that immediately follows the grant to Congress of the power To declare War - namely, the power to grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. These additional words, it is argued, enable Congress to regulate the President's ability to use military force in a manner short of full-scale war. This prevailing interpretation of the Quasi War cases is incorrect and has special significance because the U.S. Court of Appeals for the District of Columbia Circuit gave it credence in 2000 in the war powers case Campbell v. Clinton and because one or more of the cases continues to be cited in litigation concerning the current war on terror.

Keywords: Declaration of war, marque, reprisal, capture, prize, Quasi War, Bas, Talbot, Bareme

JEL Classification: K10, N00, N41, N71, N81

Suggested Citation

Sidak, J. Gregory, The Quasi War Cases—And Their Relevance to Whether Letters of Marque and Reprisal Constrain Presidential War Powers. Harvard Journal of Law & Public Policy, Vol. 28, No. 2, pp. 465-500, Spring 2005. Available at SSRN: https://ssrn.com/abstract=577264 or http://dx.doi.org/10.2139/ssrn.577264

J. Gregory Sidak (Contact Author)

Criterion Economics, L.L.C. ( email )

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