FOREIGN RELATIONS AND THE SEPARATION OF POWERS DOCTRINE

[Writing Sample]
Chapter 1 Foreign Relations and the Separation of Powers Doctrine
Section 1. Concurrent Presidential-Congressional Power

Little v. Barreme

The Flying Fish, an American ship under Danish and other foreign papers, was captured and detained by the US Navy under the instructions of the act of Congress. However, this seizure proved controversial regarding its lawfulness and damages to the ship. Besides, the misconstruction of the act of Congress awakened the tension between Presidential and Congressional powers. Whatever the consequence is, the judge on an appeal to the circuit court held that the circuit court’s decision, i.e. the unlawful act to be liable to compensation by Captain Little, had appeared appropriate and had no objection to it.

Facts: The Flying Fish, a Danish fishing boat was seized and tried before the US court due to the suspicions that it was violating the non-intercourse law. However, on an appeal to the circuit court this verdict was reversed because the fishing boat was on a voyage from, not to, a French port, and was therefore, had she ever been an American vessel, not liable to capture on the high seas.
Conflicts between the Act of Congress and Order of the Executive: The executive conducted transmitted vessels with the letter of the act of Congress and that of its own ordering clause, which were not same. Whereas the act of Congress constrains vessels sailing to a French port only on the high sea, the order of the Secretary of Navy was to stop and examine any ship or vessel bound or sailing to any port or place within the territory of the French republic, or her dependencies.
Legal Questions:
If the misconstruction of the act by an officer caused damages to the Flying Fish, is his act unlawful and obligating him to compensate the Captain of the boat?
What specific act of the Executive was challenged in Little v. Barreme?
- Under Article 2, Section 2(1)[1] of Constitution, the US Navy was conducting an investigation in any ship or vessel bound or sailing to any port or place within the territory of the French republic, or her dependencies, while the act of Congress restricted such investigations to vessels only sailing to a French port, seizing it on the high sea only. This misconstruction of the act challenged the Executive power in Little v. Barreme.
The challenged act might conceivably have been carried out under one of three legislative postures: Congress might have approved; Congress might have been silent; or Congress might have disapproved. (See the concurring opinion of Justice Jackson in the Steel Seizure Case, p.9) What, according to Chief Justice Marshall, was the congressional posture here? Do you agree?
Why does the Court not discuss the constitutionality of the statute in question? Of what significance is it that the Court does not discuss whether the President has “inherent” or “independent” power?
Would the President’s act have been constitutional if Congress had been silent?
Should the case be read narrowly as concerning merely the liability of a military official for damages during a period of hostilities, or more broadly as defining generally the scope of presidential power in the face of congressional disapproval?
Holding: Marshall, CH. Judge has no objection to the decision of the circuit court that Captain Little is liable to the damages done during the capture and detention to the Flying Fish, an American ship whose seizure makes the act of Captain Little unlawful.
[1] The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.