The Posse Comitatus Act: Liberation from the Lawyers

Abstract

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air 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. --Posse Comitatus Act (1) Much has been written about the Posse Comitatus Act. As a few others have noted, much of this commentary is just plain nonsense. (2) The majority opinion, however, including that of the Department of Defense, maintains that this 19th-century strictly limits almost all DOD participation in any activity related to law or (3) This fundamental mischaracterization, while understandable, is potentially dangerous to national security and has done nothing to protect civil liberties. So how did a racist from the bitter Reconstruction period morph, in many minds, into shorthand for the respected principle that Americans do not want a military national police force? In a nutshell: deliberate mischaracterization by the original supporters who hid behind patriotic language to strip the freed slaves of their nascent civil and voting rights; excessive focus on the false historical arguments as opposed to the law's actual text and ugly history; and some bad policy that misused a few key court decisions, and part of a statute, in a way that limited DOD efforts in the war on drugs at a time when Congress was pushing expanded participation. This article introduces the actual history and meaning of the Posse Comitatus Act, distinguishing clearly between the and a misleading DOD regulation that requires an army of lawyers to navigate. Despite what you've heard, the Posse Comitatus Act is not a significant impediment to DOD participation in enforcement or homeland security. The Act's Uninspiring Pedigree General Acceptance of Army Participation in Law Enforcement (1787-1861) While the nation's founders were deeply concerned with the abuses of the British army during the colonial period and military interference in civil affairs, the majority was even more concerned about a weak national government incapable of securing life, liberty, and property. Some vocal patriots sought to avoid a standing army and any federal control over the state militias; however, in the end, theirs was the minority view. The new Constitution did not contain the explicit limits and outright bans desired by some, even though the pro-Constitution Federalists explicitly argued that the standing army could assist in enforcement efforts. The framers even debated the federal government's power to call out the posse comitatus (literally meaning the power or authority of the county) and did not prohibit this established feature of the common law. Clearly, the Posse Comitatus Act did not originate from the prevailing opinion during the revolutionary period. Legislative and executive actions in the early days of the American republic confirm that the use of federal troops or federalized militia to preserve domestic order, either as part of a posse comitatus or otherwise, was an accepted feature of American life under the new Constitution. In 1794, President Washington led federal troops into western Pennsylvania because unruly farmers refused to pay a whiskey excise tax. President Jefferson issued a broad proclamation that relied upon the Chief Executive's authority to call on the entire populace, military and civilian, to serve as a grand posse comitatus to counter Aaron Burr's planned expedition against Spanish territory. In 1832, President Jackson initially sent military forces toward South Carolina under a Jefferson-like posse comitatus theory to prevent secession. In an 1851 report to the Senate, President Fillmore stated that he had the inherent power to use regular troops to enforce the laws and that all citizens could be called into a posse by the marshal. …