Marque and Reprisal

The Congress shall have Power To ...grant Letters of Marque and Reprisal....

Article I, Section 8, Clause 11

The Marque and Reprisal Clause plays an important supporting role in the debate over the original allocation of war powers between the President and Congress. At the time of the Founding, the sovereign authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. The common understanding of "Reprisal" is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state. Because the word marque is the French equivalent of reprisal, many scholars believe that the constitutional term "Marque and Reprisal" is best understood as a single phrase.

The only serious debate over the meaning of the Marque and Reprisal Clause is whether it extends only to authorizing private parties (known as "privateers") to engage in reprisals for private, commercial gain, or whether it also gives Congress the power to authorize reprisals by the armed forces of the United States for public purposes.

That debate mirrors the larger war powers debate over the Declare War Clause. Congressionalists construe the Declare War Clause and the Marque and Reprisal Clause jointly to cover all forms of hostilities and thereby to deny the President any power whatsoever to initiate hostilities. They contend that the Declare War Clause requires Congress to authorize wars, whereas the Marque and Reprisal Clause requires Congress to authorize lower level hostilities, whether by public forces or by privateers.

Citing revolutionary practice, presidentialists maintain that the Marque and Reprisal Clause was originally understood to give Congress the power to vest sovereign authority to use force against enemy nations and their subjects with private parties only. Exercising that power, Congress could authorize so-called privateers to engage in military hostilities, with neither government funding nor oversight (other than after-the-fact judicial determinations of prizes by the prize courts). Thus, according to presidentialists, the Marque and Reprisal Clause is best read in conjunction with Congress's power over the purse. They argue that the clause is consistent with their overall structural theory of the Constitution, under which Congress has exhaustive authority over all funding of military hostilities, whether through public appropriations or private letters of reprisal, but no power to control directly the President's ability to initiate hostilities with whatever resources Congress has previously made available to him. Under this framework, locating the Marque and Reprisal Clause in Article I prevents the President from engaging in hostilities free from congressional control over resources, whether in the form of public appropriations or the issuance of letters of marque and reprisal. The clause thus helps fill a hole that would otherwise exist in Congress's control over the provision of military resources.

Outside of the law reviews and scholarly debates over the allocation of war powers between Congress and the President, the Marque and Reprisal Clause has played little if any role in modern law. The United States has not issued letters of marque and reprisal since the War of 1812, and has not seriously considered doing so since Andrew Jackson's presidency. In addition, the 1856 Declaration of Paris prohibits privateering as a matter of international law. Although the United States has not ratified the Declaration, it has upheld the ban in practice.

During the Iran-Contra controversy of Ronald Reagan's administration, Members of Congress objected to the President's private financing of hostilities, absent prior congressional consent. Congress did not expressly invoke the Marque and Reprisal Clause, however, in objecting to executive branch action.

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John Yoo
Professor of Law
University of California-Berkley, Boalt Hall School of Law
James C. Ho
Partner
Gibson, Dunn & Crutcher, LLP