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Flying Fish Indeed



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In Monday’s New York Times, Adam Cohen published an “Editorial Observer ” column arguing that, notwithstanding the Article II power of the president as commander in chief, the Congress can “pass laws that set the terms of military engagements.” He has a few examples that purport to shore up this characteristic overstatement. Let us look more closely at one of them.

Cohen’s oldest example, and evidently his favorite, is “the Flying Fish case,” as he calls it. Its actual name is Little v. Barreme (1804), and it is typically taken to be a war powers case—I have taught the case myself in a course on the subject. But the Little case is an odd one, and fairly inapposite for the argument that Cohen wants to make, namely that Congress has powers beyond that of the purse by which it can micro-manage the executive conduct of war.

The case arose out of what historians call the “quasi-war” with France following the XYZ Affair of 1798. Besides the better-known Alien and Sedition Acts, Congress also passed an act “to suspend the commercial intercourse between the United States and France,” and authorizing captains of the U.S. Navy, sailing the high seas, to seize any American-owned merchant vessel known or suspected to be bound for any French port (including those of the French colonies). President John Adams ordered his naval captains to seize such vessels bound either to or from French ports. Captain Little of the Navy seized the Flying Fish, a vessel whose owner was Danish, not American, thus not subject to the law’s strictures—and it was bound from, not to, a French port, which exploded any argument that Captain Little might have made a good-faith mistake about the vessel’s ownership. The owner won damages in a lower federal court, which the Supreme Court affirmed, though Chief Justice John Marshall expressed some hesitation about this conclusion, given the obvious good sense of the president’s expansive orders to seize vessels making both to and from French ports.

That’s it, though. From this case Cohen spins out the conclusion that Congress can “make decisions about a war’s scope and duration” and, as noted above, “set the terms of military engagements.” But not so fast.

In Congress’s own understanding, its 1799 statute at the center of the Little case was not an exercise of its war-declaring powers, or its military-regulating powers, at all. It was an act regulating our foreign commerce with France, and fell under the commerce clause of Article I, section 8. It does not matter that the consequence of the act was the occasional naval battle, complete with grapeshot and boarding parties. In legal and constitutional terms, the act was nothing but a vigorously enforced commercial embargo. That’s why “quasi-war”—that is, not really a war, despite the occasional violence—is the right term for the events that followed. The owner of the Flying Fish could avail himself of our courts to recover his property, and/or damages, partly because we were not formally at war with the French, with all the depredations customarily sanctioned by the laws of war in such circumstances.

And none of Cohen’s subsequent examples (Truman’s seizure of steel companies during Korea, plus a couple of constitutionally dubious statutory obstacles to executive action in the 1970s and 1980s) is even as strong as this one.

Now compare this to our present situation. In language practically indistinguishable from a classic declaration of war, the Congress said in October 2002 that

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

This brought all the discretionary powers of the commander in chief into play, in ways that the 1799 act in the Little case did not. It is conceivable that Congress could pass an act repealing this one, thus revoking the president’s statutory authority to use the armed forces in any manner relating to Iraq. It is even more conceivable that the president—any president in present circumstances—would veto such an act, citing his constitutional duties as the commander in chief. And if the Congress passed the repeal act over the president’s veto, I expect that any president—again, facing the present circumstances in Iraq—would defy it as an invasion of his power and duty as commander in chief in a war he had not yet successfully brought to a conclusion, even if he made haste to bring it to a conclusion with minimal loss of life and minimal risk of outright defeat.

And the courts? If they knew their business, they would almost surely stay away from any attempt to settle the issue. And the Adam Cohens at the New York Times would squawk about a “constitutional crisis” that Congress, not the president, had ginned up in a desperate, destructive need to assert itself, while the American people would almost surely back the president. The new leaders of the Congress would serve themselves, the Constitution, and the country if they stop their ears from hearing Adam Cohen’s siren song.


Tags: Franck


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