Senator Mike Lee of Utah introduced a bill on December 18, 2025, that would resurrect one of the oldest and most overlooked powers in Article I of the Constitution and turn it against the cartels terrorizing our border and the shipping lanes of the Caribbean. The bill is the Cartel Marque and Reprisal Authorization Act of 2025, S. 3567, and it would authorize President Trump to issue letters of marque and reprisal to privately armed American citizens and their businesses, deputizing them to seize, outside U.S. territory, the persons and property of designated cartel members. A House companion, H.R. 1238, has been introduced by Representative Tim Burchett of Tennessee. Both bills remain in committee; neither chamber has voted.
The Constitution’s Forgotten Clause
Article I, Section 8, Clause 11 provides:
“The Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
At the Founding, a letter of marque and reprisal functioned as a government-issued license. A private citizen who received one from the sovereign became a privateer, authorized to attack and capture the vessels and property of a designated enemy. Absent that license, the identical conduct is piracy — an offense the law of nations and admiralty courts have never treated kindly. With it, the privateer becomes a lawful instrument of the state, bound by the precise terms of the commission: what may be seized, from whom, and for how long. Exceed those terms and the privateer acts ultra vires, forfeiting the letter’s protection and reverting, in the law’s eyes, to a pirate.
Professor John Yoo of UC Berkeley School of Law, in his essay on the clause for the Heritage Guide to the Constitution, explains that the Founding-era sovereign could authorize private parties to engage in hostile acts against a state’s enemies for the privateer’s own commercial gain. The Constitution deliberately splits this power: Congress may grant such letters; the states categorically may not.
What Senator Lee’s Bill Would Do
S. 3567 would authorize the President “to commission … so many privately armed and equipped persons and entities as in the judgment of the President the service may require” to seize, outside the geographic boundaries of the United States and its territories, the person and property of anyone the President determines is a cartel member, a member of a cartel-linked organization, or a conspirator responsible for an act of aggression against the United States. The bill conditions any letter on a security bond and ties every target to cartels or cartel-linked organizations already designated by the President or Congress. Senator Lee explained his purpose directly:
“The Constitution provides for Letters of Marque and Reprisal as a tool against the enemies of the United States. Cartels have replaced corsairs in the modern era, but we can still give private American citizens and their businesses a stake in the fight against these murderous foreign criminals. The Cartel Marque and Reprisal Authorization Act will revive this historic practice to defend our shores and seize cartel assets.”
I find this a serious and historically literate proposal. This country has no shortage of Navy veterans, former special operators, and Naval Academy graduates with exactly the maritime and tactical skills the mission would require, and Lee’s bill would give them a lawful, congressionally bounded way to put those skills to use against an enemy that has spent decades operating with near-total impunity.
A Dormant Power, Precisely Dated
How long has this power lain unused? The honest answer requires two separate facts, not one flattened claim. American privateers last operated under letters of marque during the War of 1812, and the last documented federal commission issued in 1815, against the Dey of Algiers. Congress last authorized a President to issue them later still: the Act of March 3, 1863 empowered President Lincoln to commission privateers during the Civil War, though he never exercised that authority. Issued and authorized are not the same word, and a serious accounting of this clause should not collapse the two into one.
Jean Lafitte, Andrew Jackson, and the Precedent
The War of 1812 offers the vivid illustration. At the Battle of New Orleans, fought January 8, 1815 — after the Treaty of Ghent had been signed abroad but before word reached American shores — General Andrew Jackson, later the seventh President and a committed defender of an armed citizenry, won the field with substantial help from Jean Lafitte, a privateer and former smuggler whose birthplace remains disputed among historians, variously placed in France or a French territory. Lafitte and his brother Pierre supplied Jackson’s forces with men, artillery, and gunpowder. Both brothers were later pardoned for their earlier smuggling. That combined force of private militia and privateers drove the British out of Louisiana and secured American control of the Mississippi River.
Private Arms in the American Tradition
I have argued for years that the right to keep and bear arms cannot be understood as a narrow hunting-and-target-shooting privilege. It is, and has always been, a guarantee that privately armed citizens stand ready to answer tyranny in whatever form it arrives — a foreign invader, a street criminal, a cartel member, or even a wild animal. Senator Lee’s bill contemplates a different but constitutionally kindred application of that same principle at sea. The letters-of-marque power and the Second Amendment spring from a common premise: an armed private citizenry is not merely tolerated by our constitutional order but built into its architecture as a legitimate instrument of national defense. Whatever becomes of S. 3567 and H.R. 1238 in committee, that premise deserves to be taken seriously by anyone who claims to take the Constitution seriously.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.