Imagine, if you will, the following facts: During a period of congressionally authorized hostilities against a foreign state, Captain South, a United States naval officer, receives a Presidential order to seize certain vessels found trading with the enemy. The order itself is not authorized by Congress, but neither is it expressly prohibited: the law is silent concerning the President's authority to issue the order. Captain South carries out the President's order, and the owners of the seized vessel bring an action in damages against him protesting the seizure. The theory of the suit: the President's order, not having been authorized by Congress, is illegal. And the main question: Should Captain South be held personally liable for damages?
Michael J. Glennon,
Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss- Wright ?,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol13/iss1/3