ARTICLE: LITTLE V. BARREME: THE LITTLE CASE CAUGHT IN THE MIDDLE OF A BIG WAR POWERS DEBATE Skip over navigation
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Copyright (c) 2008 Wayne State University 
The Journal of Law in Society

ARTICLE: LITTLE V. BARREME: THE LITTLE CASE CAUGHT IN THE MIDDLE OF A BIG WAR POWERS DEBATE

Fall, 2008

The Journal of Law in Society

10 J.L. Soc'y 77

Author

KATHARINE A. WAGNER *

Excerpt

I. INTRODUCTION

Two centuries ago, Chief Justice John Marshall delivered the unanimous opinion in Little v. Barreme to little fanfare. The Court found that Captain Little had improperly captured a Danish ship on the high seas and upheld a judgment of $ 8,504 against him, 1 not a penny of which he ever paid. 2 At first glance, the case seems destined to fade into the obscure history of eighteenth-century maritime high finks, yet the brief opinion has since become a favorite weapon of critics of President George W. Bush's post-September 11, 2001, anti-terror programs. 3 For some, Little has risen to mythological status as defender of congressional war powers against "executive aggrandizement," 4 while others consider Little as no more than urban legend, extended far beyond its meager beginning as a commonplace--for 1799--ship seizure claim. Thus, rightly or wrongly, in the early twenty-first century, little Little is a big war powers case.

Little held, in relevant part, 5 that a presidential order instructing captains to seize certain vessels from sailing to or from French ports is unlawful under a congressional statute authorizing seizures of such ships "proceeding to" French ports. 6 Put thusly, today, reliance on Little appears anachronistic and contrary to the contemporary notion of a broad presidential discretion in conducting war 7 and to the vision of the President as the "sole organ of the nation in its external relations, and its sole representative with foreign nations." 8 Furthermore, the repeated dismissals of legal challenges ...
 
 
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