Article 1, Section 8, Clause 11: War Powers

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress is granted the power to declare war, preempting both the individual states and the President. Most controversies over this clause revolve around how much authority the President has to take military action independent of Congress. The Founders were clearly appalled at the idea of the executive taking offensive military action without the consent of Congress, which they understood to mean military action outside the borders or territorial waters of the United States. It was understood that the President might act unilaterally to repel an actual invasion. However, Presidents and proponents of Presidential power have since argued that “the best defense is a good offense”, and that an effective response to invasion may well require force projection beyond U.S. territory and waters before Congress has time to act. Current law is that the President must obtain either a declaration of war or an authorization of force from Congress within 60 days of the start of hostilities.

Letters of marque and reprisal are essentially obsolete concepts in international law. Letters of marque authorize a private ship master to attack enemy shipping in the name of his government (making him a “privateer” rather than a pirate) but are now banned under international law. Letters of reprisal authorize a private citizen to cross international borders to take retaliatory action for an alleged wrong.

Rules of capture are administered by admiralty courts, which are part of the federal judiciary. Since the U.S. Navy has not seized a ship under prize rules since the Spanish-American War, this provision is largely moot as well.