Jacob Rodriguez is a graduate student in political science at Baylor University.
In late January, Senator Mike Lee (R–Utah) suggested an unorthodox idea to address the problem of drugs and violence along the southern border: to use letters of marque and reprisal to attack and weaken drug cartels. Writing on X (Twitter), Lee explained that the authority to allow private militaries to attack and seize cartel goods for profit could be found in a little referenced clause of Article I, Sect. 8 of the Constitution. The section most famously empowers Congress to declare war, but also gives them the ability to “grant Letters of Marque and Reprisal.” While often ignored and understudied, the Marque and Reprisal clause is key to understanding the full breadth of congressional war powers. Correcting the overly broad latitude the president has in sending Americans to war requires that we pay closer attention to how this specific clause helps us interpret the full meaning of the “Declare War” clause in the Constitution.
Letters of marque were traditionally issued to privateers, allowing them to attack and seize ships and property from enemies of the state. While there were many privateers holding letters of marque engaged in combat during the Revolutionary War, privateering was less relied upon once the Constitution was ratified in 1787, and there were few uses for the clause after its ratification. Privateering fell out of favor internationally in the wake of the Paris Declaration of 1856, which outlawed the use of privateers.
Senator Lee’s proposal is a unique idea for dealing with the difficult problem of drug cartels, but it is also not the first time the Marque and Reprisal (M&R) clause has been considered for modern applications. Many politicians have suggested using it for engagements against terrorist cells and belligerent countries. These ideas have amounted to little; Congress has not issued letters of marque regularly since the early 1800’s. The reason for this is our transformed understanding of war powers. For much of American history, the president has used his constitutional role as commander in chief to assert profound power in directing conflicts with America’s enemies. In the 20th century particularly, that power has ballooned into near total presidential discretion over the direction of foreign conflicts.
Through means other than the M&R clause, the president has gained power to direct both full- scale wars as well as small-scale conflicts across the globe, all without Congress officially declaring war or approving the conflict. The last official declaration of war from Congress was in 1942. Since then, the president has ordered engagements in a variety of theaters across the world. Attempted checks on the president’s power, such as The War Powers Resolution of 1973, have been ineffective in limiting the actions of the president. Congress has been hesitant to use other constitutional powers, such as its control over the purse, to impose any limits on the president. The reason for the lack of modern applications of the M&R clause, then, is not for want of small- scale military engagements, covert or not. The president now possesses the political power and
military flexibility such that he does not need to seek explicit congressional approval before directing American soldiers and arms into combat.
Senator Lee’s proposal is an opportunity to revisit the debate upon war powers, and to investigate the power Congress and the presidency have to make and declare war. This is a crucial discussion, for the power to use force or authorize violence against perceived enemies is assumed to be the sovereign power of government. The moral gravity of going to war or initiating force upon others makes for an impassioned debate, one which has largely hinged upon the meaning of two sections of the Constitution: Congress’s power to “Declare War” in Article I and the president’s role as commander in chief of the armed forces, described in Article II. In focusing upon these portions of the Constitution, scholars have failed to identify the important and suggestive interpretations of constitutional war powers which could be given by attending to the less prominent portions of the text.
Scholars who advocate for congressional powers and against executive overreach have interpreted the Constitution in literal terms. They argue that the “Declare War” clause of the Constitution means that Congress must declare war before the president can engage in hostilities as an aggressor. They suggest that the intention of the Framers was to limit the executive and place the authority to exert violence, the foundational element of sovereignty, in the hands of the people through their representatives in Congress.
An issue with this interpretation is the very nature of conflict. The Framers relied upon formalist language in describing congressional war powers, seemingly presupposing conflict between two established nations abiding by time-honored rules between combatants. The historical record undermines this view of warfare, however. Large-scale warfare has rarely been so well-defined, and instead usually arises from the escalation of smaller conflicts, none of which are formally recognized or authorized by any government until leaders wish to dedicate their whole nation’s strength to the cause. A number of undeclared wars or small conflicts have been fought throughout America’s history, such as the Quasi-War with France in 1798, or the many military engagements with Native American tribes which occurred in the settling of the west.
The reality of escalating warfare has only become more prominent in the 20th and 21st century. The contemporary conflicts America engages in across the globe are often small, and do not entail a full declaration of war. Critics of the position that Congress must authorize all warfare point to this reality, and to the Framer’s own awareness of the vicissitudes of war, as evidence for a different interpretation of war powers. Scholars in favor of an emboldened presidency, such as John Yoo, argue that the Framers never intended for Congress to have exclusive power to authorize conflict with another nation, but rather that the Constitution leaves open the possibility of the president initiating foreign conflicts. Presidentialists assert that the direction of military capacities is a natural executive function, and the power to decide to engage in hostilities with a foreign power is assumed in the president’s powers as commander in chief. According to Yoo, Congress’s war powers are primarily a declarative function; they are meant to insulate citizens
and political actors from international sanction legally, not to authorize the use of force against enemies.
These debates about the nature of war powers between Congress and the president pay little attention to the Marque and Reprisal clause. Often the M&R clause is taken to be almost irrelevant to the debate: congressionalists see it as another instance of powers that the Framers accord to Congress (powers intended specifically to cover small-scale conflicts not included under the broader category of war), while presidentialists like Yoo suggest it is likewise a legal construction, in this case specifically intended to insulate privateers from international sanction.
This ignores crucial details about the wording and historical application of the M&R clause. A major element of the presidentialist argument is the assertion that Congress’s war powers cannot be understood as necessary “authorizations for hostilities.” To do so would be to unduly split war powers wielded best by the president, as the Framers intended. This, however, is exactly what a letter of marque or reprisal is. Letters of marque were in effect “licenses” to attack and seize property from enemies of the state. Congress’s power to issue “Letters of Marque and Reprisal” gives the legislative branch the power to direct the use of force in specific ways, such as allowing privateers to raid enemy ships in certain conflicts. During the Revolutionary War, letters of marque were issued to many privateers, who engaged, seized, and destroyed hundreds of British and enemy ships. Many letters of marque were issued during the War of 1812, with the intent of aiding the U.S. military against the British. Scholars acknowledge that the M&R clause contains a power to authorize limited hostilities, even if many are skeptical of the contemporary application of this power.
This is crucial given the importance of force and the monopoly on violence for sovereign government. According to the presidentialists, the president has the initiative to decide who and when to engage in conflict with. At the same time, it is unavoidable that Congress is afforded the power to order their own engagements through the M&R clause, however narrow or inapplicable these uses of force might be for today. Rather than interpreting the Constitution to be affording the same kind of power to authorize hostilities to both Congress and the president, it makes far more sense to assume that the very clear capacity to authorize conflict in a smaller context implies the authority to do so in a larger context. In other words, once we understand the importance of authorizations of the use of force, and we see that Congress very clearly has the power to do so in one context through the Marque and Reprisal clause, we ought to assume the same type of power lies at the bottom of the “Declare War” clause.
This implies that the power to take the country into conflict, large or small, lies solely with the legislative branch of government, the branch closest to the sovereign authority of the American government, the people. This would set the range of powers to authorize hostilities against America’s enemies within one branch of government, rather than having them in effect be exercised by both Congress and the president in different capacities. Understanding the M&R clause in this way allows us to interpret the “Declare War” clause as authorizing full-scale war,
and not merely as providing a “legal” function. The president, in this interpretation, “conducts” wars or small-scale operations in his capacity as commander in chief, pursuant to Congress’s direction.
Opponents of placing the power to authorize the use of force in Congress would point to a practical issue with this interpretation; what about surprise attacks or invasions? If America were attacked, either at one of its many bases across the world or even upon its own soil, would it have to wait for Congress to declare war or issue a “letter of reprisal” before it could defend itself?
This problem is solved by noting the deliberate distinction the Framers made between “declaring” war and “making” war. At the Constitutional Convention the Framers refrained from using the broader language of “Make War” in Article I, with the explicit intention that this would leave the president and the military able to respond to surprise attacks as needed. This is in keeping with concerns for sovereignty, as using force in the case of surprise attacks does not require democratic assent. Safeguarding a nation’s citizens from foreign aggression is one of the core obligations of the government, and so the executive is duty-bound to defend the nation against attack immediately.
The warmaking power of the president has vastly expanded since 1787. Many scholars and politicians have legitimate concerns about the danger and constitutionality of these engagements. While many of these conflicts are necessary and advance American interests, Congress has failed to exert significant oversight over the president’s warmaking. Raising the issue of authorizations through the Marque and Reprisal clause gives Congress a constitutional argument in favor of retaining democratic assent over military engagements. It refocuses our understanding of the “Declare War” clause and the breadth of war powers attributed to Congress in the Constitution.
Rather than dampening the powers of the government to engage in necessary conflicts, returning to the constitutional vision of the Framers would allow for Congress and the president to deliberate together over the momentous decision to go to war. While reasserting the original meaning of the M&R clause cannot limit oversteps from the president in warmaking, it lends credence to the argument that such decisions are the province of the legislature, and so can encourage Congress to employ its other powers to check the president.
If members of Congress are careful and attend to the Constitution well, they may also set the future of American foreign policy through the issuance of letters of marque and reprisal. Mike Lee’s proposal is an opportunity, however remote, for Congress to direct foreign policy more concretely than perhaps ever before. Once a dated relic of Revolutionary war stories, letters of marque and reprisal may soon bring to heel cartels, pirates, and enemies of the American people.