The Congress shall have Power To ...make Rules concerning Captures on Land and Water....
Under the Captures Clause, Congress has the power to make rules for the confiscation, dis-position, and distribution of captured enemy property. Although the original understanding suggests that the clause covers the seizure of enemy shipping as prizes, the war against terrorism has spurred debate over whether it also includes enemy prisoners. Three main arguments have developed over the reach of the Captures Clause: (1) The clause does not apply to prisoners, and therefore the power over enemy prisoners rests with the President; (2) the clause applies only to property, not persons, but Congress can regulate the treatment of prisoners via its authority to regulate and govern the armed forces; and (3)the clause applies to prisoners, and moreover Congress has additional authority through the Offenses Against the Law of Nations and Declare War Clauses.
The roots of the Captures Clause can be traced to Article IX of the Articles of Confederation, which vested in Congress the power “of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the united states shall be divided or appropriated.” The original understanding of the clause appears to be that Congress alone has the power to establish rules governing the circumstances under which wartime “captures”—generally enemy ships or vessels aiding the enemy and their valuable goods—will be adjudged lawful “prizes,” to which the captors are entitled at least partial title. This construction is supported by the practice that, during the Revolutionary War, captors could not claim lawful title to captured property until after a prize court had granted it.
Under this interpretation, the term “captures,” as understood by the Framers of the Constitution, includes only enemy property. The term could not include captured enemy soldiers, as persons can neither be “divided” nor “appropriated,” nor can they be treated as legally awarded prizes. This approach is bolstered by the fact that the term capture was under-stood under international law, as listed in Bouvier’s Law Dictionary (1914), as “the taking of property by one belligerent from another or from an offending neutral.”
There was little commentary among the Framers regarding the breadth of the notion of wartime captures, so scholars have resorted to discerning contemporaneous historical practice. Presidentialists argue that during the war for independence, the Continental Congress frequently issued letters of marque and reprisal exclusively to privateers “to make Captures of British Vessels and Cargoes,” pursuant to rules established by Congress. Presidentialists conclude that the Captures Clause authorizes Congress to regulate captures by private parties only and not by the armed forces of the United States. But congressionalists note that although the bulk of congressional authorizations and concern related to the actions of private vessels outfitted against the British, early Continental Congress resolutions asserted the power to control captures by both private and public vessels.Thus Congress has some constitutional authority to prescribe rules for at least some elements of military conflict.
Although the executive’s power to conduct war necessarily includes the power to seize persons and property on the battlefield, the Supreme Court has construed the Captures Clause to deny the executive constitutional power to seize enemy property off the battlefield. In Brown v. United States (1814), the Court concluded that, by virtue of the Captures Clause, the executive lacks inherent constitutional authority to confiscate property owned by subjects of enemy nations, and must seek congressional authorization in order to do so. Congress has long conferred such power upon the executive by enacting laws such as the Trading with the Enemy Act.
In recent cases arising from the War on Terror, the Court has generally avoided a discussion of the Captures Clause. Its only reference comes in Hamdan v. Rumsfeld (2006), where the Court referred to the Captures Clause as an example of congressional powers distinct from the President’s powers in executing war, but did not clarify the powers included in the Captures Clause. Furthermore, five members of the Court found the detention of enemy combatants for the duration of the conflict to be “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use,” without clarifying whether Congress even needed to authorize the President to execute his war powers in areas “so fundamental and accepted.”
David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV 689 (2008)
ELLEN C. COLLIER, CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES FORCES ABROAD, 1798–1993 (1993)
Robert J. Delahunty and John C. Yoo, Making War, 93 CORNELL L. REV. 123 (2007)
LOUIS FISHER, CONGRESSIONAL ABDICATION ON WAR & SPENDING (2000)
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION (2D ED. 1996)
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990)
C. Kevin Marshall, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. CHI. L. REV. 953 (1997)
Michael Stokes Paulsen, The War Power, 33 HARV. J.L. & PUB. POL’Y 113 (2010)
Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 COR-NELL L. REV. 45 (2007)
Saikrishna Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299 (2008)
Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002)
Ingrid Wuerth, The Captures Clause, 76 U. CHI. L. REV. 1683 (2009)
John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996)
John C. Yoo, War and Constitutional Texts, 69 U. CHI. L. REV. 1639 (2002)
Brown v. United States, 12 U.S. (8 Cranch) 110 (1814)
Prize Cases, 67 U.S. (2 Black) 635 (1863)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)