The Myth of The Posse Comitatus Act

The Myth of The Posse Comitatus Act

“We are all born ignorant, but one must work hard to remain stupid.”

(Ben Franklin)

I’m amazed at the number of ‘locker room experts’ that have been spawned since Trump floated the idea of using federal troops to help enforce immigration laws.  According to these ‘experts’ the Posse Comitatus Act prohibits the federal government from using the military to enforce domestic law.  Therefore, Trump cannot use federal troops to enforce immigration laws.  Alas, the knowledge of these leading lights is a mile wide and an inch deep…the Posse Comitatus Act does no such thing.

What the Posse Comitatus Act does, is impose criminal sanctions on those who use federal troops unlawfully or unconstitutionally to enforce laws within the U.S.

The Posse Comitatus Act is codified as 18 USC §1385 and states in full:

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” (emphasis mine)

In other words, the Act only restricts the use of the federal military for law enforcement duties to those instances authorized by statute or the Constitution. It certainly does not prohibit federal troops from being used in that role.  Ah, but has Congress ever authorized the use of federal troops to enforce domestic laws you ask?  Well, yes, yes, they have…continuously since 1792!

According to the Congressional Research Service, there are currently 32 statutes authorizing the use of some or all of the federal armed forces to enforce laws within the U.S.  Another 10 statutes allow the federal armed forces to provide assistance to civilian law enforcement agencies – both state and federal.

Of these 42 statutes the most sweeping ones are 10 U.S.C. §§251-255, commonly referred to as the Insurrection Act which began as the Calling Forth Act of 1792.  Even a cursory reading of these statutes show that Congress has authorized the President to not only use the military to enforce domestic laws since 1792, but also provided him far reaching powers to do so.  The two most sweeping statues of the Insurrection Act are:

– 10 U.S.C. §252 which provides the President with the authority to use federal troops to enforce federal laws in any state, when the state cannot, or will not do so; and

– 10 U.S.C. §253 which provides the President the authority to use federal troops to enforce both state and federal laws in any state that (1) cannot or will not enforce those laws and (2) the failure to enforce those laws would result in people being “deprived of a right, privilege, immunity, or protection named in the Constitution…”  Note this statute allows the President to use federal troops to enforce state laws under certain circumstances.

These statutes not only provide the President with the authority to use federal troops to enforce domestic laws, but also with the authority to determine when to use federal troops to enforce domestic laws.

In Martin v. Mott, (1827) the Supreme Court held that the authority to decide whether the prerequisites required to invoke the Insurrection Act have “arisen is exclusively vested in the President…”  The Court did limit the President’s authority somewhat with language holding the President can use federal troops only in emergencies.  In Sterling v. Constantin (1932) the Supreme Court reaffirmed Martin v. Mott but clarified that though the President determines when the prerequisites have been met, the courts retain jurisdiction to review the lawfulness of the military’s actions once they are committed to enforcing domestic laws.  In other words, the President determines when the military can enforce the laws under the Insurrection Act, but the military cannot violate the Constitution or the law in doing so.

While not the norm, invoking the Insurrection Act is not rare either.  In its 231-year history the Insurrection Act has been invoked 30 times.[1] Washington was the first to invoke the Insurrection Act in 1794[2] and H.W. Bush the last in 1992. Every time the Insurrection Act was invoked, it was invoked by Presidential order and without the involvement of Congress.

Presidents have used the Insurrection Act to break up railroad strikes that were affecting interstate commerce, put down “rebellions” that sprung up over unpopular taxes, combat violent raciest organizations such as the KKK, and in response to riots.  Perhaps the most notable use of the Insurrection Act was the use of federal troops to enforce civil rights laws in states who refused to do so.

President Eisenhower was the first to use the Insurrection Act for that purpose.  In 1957 he ordered elements of the101st Airborne Division to Little Rock, Arkansas to ensure the “Little Rock Nine” were allowed to attend a High School in compliance with court ordered desegregation.  Presidents Kennedy and Johnson would also use the Insurrection Act to ensure laws protecting people’s civil liberties were enforced.

Given these facts, reasonable people cannot claim the Posse Comitatus Act prevents the use of federal troops to enforce domestic laws.  It does not, and never has.  At best, it restricts the use of federal troops to enforce domestic laws.  However, given the breadth of the Insurrection Act, it is debatable if the restrictions imposed by the Posse Comitatus Act are really only an illusion.

In any event, those claiming the Posse Comitatus Act prevents Trump from using federal troops to enforce domestic laws are wrong.  I would suggest they read more and talk less.

[1] There have also been 3 times when the military used troops to enforce domestic laws illegally (see: Guide to Invocations of the Insurrection Act, The Brennan Center).

[2] At the time what we call the Insurrection act was referred to as the “Calling Forth” act.