Posse Comitatus Act

Will the Marines Stand With the President in a Dangerous War Against the American People and the Second Amendment? Which branch of the military constitutes the remnant most likely to uphold the oath to the U.S. Constitution against domestic and foreign enemies?

The following is a summary of a document entitled The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, by Charles Doyle and Jennifer K. Elsea. A 2012 report prepared for the Congressional Research Service. We will identify any opinions and conclusions that do not simply summarize the history & legal precedents contained in the source document.

The U.S. Constitution provides for use of the militia to execute the Laws of the Union to suppress insurrections and invasions and to protect the states from usurpation of their “republican form of government.” Additionally, state legislatures may request federal military intervention to suppress domestic violence. Congress enacted the Insurrection Acts and other laws pursuant to its express Constitutional authority.

Insurrection Acts. The Insurrection Acts have been invoked many times in history and outlining such events clears up some of questions while also raising a number of issues. There are several federal laws that also deal with authorizing land and naval forces. The most important law for purposes of the present discussion is the 1878 Posse Comitatus Act.

Posse Comitatus Act. The Posse Comitatus Act prohibits use of the military to execute the law unless authorized by Congress within its Constitutional authority to suppress insurrection and invasions; thus, the Insurrection Acts and other laws that provide exceptions to Posse Comitatus Act. Violation of Posse Comitatus is a criminal offense.

Opinion. The conclusion of your traditionally minded, Constitutional Conservative Firearms Lawyer is that the courts are reluctant to enforce a generalized Constitutional interpretation against miliary involvement in civilian affairs unless violation of explicit Constitutional command can be shown. The fact that so many inconsistent precedents exist regarding Posse Comitatus raises the issue of how far a President might push the envelope in light of President Biden’s not-so-veiled veiled threats against Republicans in a speech where he used USMC members as a backdrop to suggest that the Second Amendment lacks efficacy against a U. S. military with F-15 jet fighters armed with missiles:

“…this claim followed the one-year anniversary of Biden’s Afghanistan pullout, where several weapons, including F-15s, were left behind for Taliban forces.”

The only F-15s the Taliban had when they fought against our country were the ones Biden left in Afghanistan for them,”

The president has been saying this for years but it’s less and less congruent with how even his own administration has played out. How many F-15s did the Taliban have when Biden decided to surrender Afghanistan to them?”

From various online media sources.

History of England and the United States. The U.S. Army and other branches of the military have traditionally exercised a tradition of restraint based on the laws of England (e.g, Magna Carta) and America that abhor military involvement in civilian politics. In the time of Edward III, punishment by the King required due process of law. Three hundred years later, Lord Coke and members of Parliament such as Oliver Cromwell, interpreted the Edwardian statutes to prohibit use of martial law. Parliament raised an army that compelled Charles I to acknowledge their assertion. When he reneged, Parliament eventually removed the King’s head in the course of a protracted English Civil War.

According to Blackstone:

“…the necessity of order and discipline in an army is the only thing which can give … countenance [to martial law]; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land…. And it is laid down, that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any one by colour of martial law, this is murder; for it is against the magna carta. And the petition of right enacts, that no soldier shall be quartered on the subject without his own consent; and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights, that the raising or keeping of a standing army within the kingdom in time of peace, unless it be with the consent of the parliament…

See also Posse Comitatus & the Office of Sheriff, by David B. Kopel.

Puritan Revolution. This struggle is often referred to as the Puritan Revolution because the majority in Parliament were Calvinists and religious dissenters. Parliament authorized and deployed the Roundheads (also called the New Model Army) with preachers riding in front of the troops with exhortations putting the faithful in mind of Old Testament battles and the blood shed by their forefathers in imitation of Christ and faithful men of olden times and the Reformation which continued across Europe at fevered pitch.

The English Civil War initially began as a result of quartering of Royal troops on English soil. In 1628, the Petition of Right outlawed quartering of troops and martial law commissions. The British quartering of troops and eventual attempts to confiscate arms were colonial grievances that developed in America during the next century. There was no usurpation of colonial judicial functions, however.

Puritan is a term commonly used for anyone who dissented against the state supported Church of England on the grounds that it was too worldly and entangled with the interests of the British elite. Puritans tended to be from the middle class who owned modest farms and small businesses as opposed to the landed gentry class.

American tradition’s most tangible expression in the 19th century Posse Comitatus Act, 18 U.S.C. Section 1385, forbids use of the military except where expressly authorized. The exceptions permit military intervention where federal manpower to enforce the law was seen as inadequate.

An example of bad consequences from intervention is the Kent State tragedy. The danger that results from inserting military troops into situations for which they are not authorized or properly prepared can be seen from a number of episodes in U.S. history.  The USA PATRIOT Act expanded use of the military to assist law enforcement agencies against terrorism. Congress nevertheless affirmed its determination to maintain the principle of Posse Comitatus. The perceived breakdown in civil law and order in Hurricane Katrina’s wake evoked more calls to reevaluate the military’s role in responding to disasters. The potential use of unmanned aerial vehicles (UAVs aka drones) to assist law enforcement raises the issue of whether the military role violates Posse Comitatus.

The Use of Federal Troops Prior to 1878. The Constitution nowhere explicitly prohibits Congress from authorizing the President to call out the militia for the purposes permitted under the Constitution. Notwithstanding the Founders’ aversion to the use of a standing army to control the civilian populace and despite the retention of most police powers by the several states, Congress quickly authorized the President to establish federal marshals empowered to call upon the militia under federal control to operate either as an arm of the government or to support the federal marshal as a posse comitatus subordinate to civil law enforcement authorities. On the other hand, the President could call up federal troops to suppress an insurrection or remove an obstruction to the execution of the law. In some cases, if local military commanders declined to give assistance or federal force seemed too weak, the marshal would try to persuade the President that an insurrection was underway.

The President might order troops to quell what appeared as an insurrection, yet limit the role of the Armed Forces in responding to the requests of the appropriate civil official. Along with possibly avoiding the need to issue a proclamation under the Insurrection Act, this gave time for Congress to enact statutes authorizing federal troops to enforce specific proscriptions, sometimes in aid of civil authorities and sometimes where civil enforcement was lacking. Presidents have issued proclamations exhorting all federal officials, civilian or military, to assist in arresting a particular conspiracy or uprising. It is not always easy to ascertain which statutory basis is relied upon.

After the Calling Forth Act expired two years later, Congress reenacted virtually the same language, except that a court finding was no longer necessary, and the proclamation to disperse did not have to occur prior to calling up the militia. It appears that the revised Calling Forth Act was understood to cover the use of the militia as an aid to civilian power or, in rare cases, as a means of temporarily supplanting local civilian authority.  

Calling Forth Act and Fries Rebellion. Both provisions of the Calling Forth Act were extended in 1807 to allow for the employment of the Army and Navy in domestic circumstances where the militia could be employed. Even before this change, President John Adams had used regular federal troops to put down, more by intimidation rather than the actual use of force, the 1799 Fries Rebellion in Pennsylvania. The cavalry arrested the instigator of the resistance, John Fries, along with others.

“Whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge….”

Whiskey Rebellion. In the Whiskey Rebellion in Western Pennsylvania, resistance to an excise tax on distilled whiskey led to violence against tax collectors; indictments of those perpetrating the violence went unanswered, and farmers eventually rose in rebellion against all efforts to enforce the federal law. The governor, having declined to call out the state militia to control the violence, the federal courts were left to call on the federal government for assistance. When the rioters failed to disperse on President Washington’s proclamation, some fifteen thousand militiamen from Pennsylvania and neighboring states quickly mobilized to restore the peace. President Washington used his authority to put down the Whiskey Rebellion in western Pennsylvania.

Resistance to Tariffs Leads to Force Bills. In 1808, President Jefferson called out federal troops to suppress Vermonters who opposed federal taxes on Canadian imports and exports.  In 1833, Southern resistance to tariffs led Congress to enact a Force Bill authorizing President Jackson to use the Army and Navy to collect duties, but at the same time reduced the duties. South Carolina rescinded its nullification ordinance, bringing the confrontation to an end without the use of force.

Neutrality Act Enforcement. The early U.S. desire to avoid foreign entanglements led to a policy of neutrality which often conflicted with the economic interests or political views of some part of the citizenry. Congress enacted a statute to prohibit the enlistment in or recruitment for foreign military service, the arming of foreign war vessels or privateers, and the dispatch of military expeditions against the territory of a state at peace with the United States. The statute also empowered the President to call upon the Armed Forces to detain or take possession of illicitly armed vessels and to prevent expeditions from departing U.S. territory.

Even prior to its enactment, President Washington had called on state militias to deal with efforts of the French Ambassador to fit out privateers and military expeditions against British and Spanish interests. President Jefferson relied on this authority to counter Aaron Burr’s conspiracy to carve out a new republic in South America in 1806 as well as other schemes to liberate Spain’s South American possessions

In 1836, at the time of Texas’s struggle for independence from Mexico, the Armed Forces were employed in an effort to prevent armed American sympathizers from crossing the border to join the fight in violation of the Neutrality Act of 1818, which expressly authorized the employment of the militia and Armed Forces in its enforcement. The next year, the Army was employed in a similar vein to quiet militant activity along the Canadian border. President Zachary Taylor issued a proclamation urging all officials, “civil and military,” to halt a planned expedition to attack Cuba, which resulted in the Navy dispatching vessels to New Orleans to prevent the expedition from departing. To block American sympathizers from aiding Cuban separatists during the Ten Years’ War and to halt Fenian expeditions against Canada, President Grant issued a proclamation in 1870 urging civil and military officers to take measures to prevent expeditions in violation of neutrality and to bring violators to justice.

Trouble in the Western States and Territories. In California, the failure of the governor to request assistance under the Insurrection Act led to a denial of military assistance. The California Gold Rush was marked by a heightened tendency toward lawlessness, which was for a time brought under relative control by the self-appointed Vigilance Committee of San Francisco, which had been allowed to operate separately from federal and local law enforcement authorities. The Committee refused to surrender a prisoner to the federal court under a writ of habeas corpus so the Governor called out the militia to put down the insurrection. The state militia responded unenthusiastically so the Governor sought assistance from the Army which refused. So the California Governor appealed to the President. The Attorney General advised the President that the situation was not sufficiently dire to require federal intervention and no effort had been made to convene the legislature.

When the Vigilante Committee took another prisoner, a judge of the California Supreme Court, the state governor again requested assistance from the military, this time from the commander of a ship in the harbor. Again, the request was turned down. The senior naval commander in San Francisco, stressing the constitutional requirements for requesting aid from the federal government to put down domestic violence, instructed the ship’s captain that there was to be no interference in the domestic troubles of the state.

The territory of Utah was the site of considerable resistance to federal law after it was established in 1850. Most white inhabitants of Utah were also members of the Church and tended to regard laws not emanating from Governor Brigham Young, the head of the Church of Jesus Christ of Latter-day Saints, to be invalid—eventually compelling nearly all federal officials to leave the territory for their own safety.

In 1857, the President appointed a new governor, and federal Armed Forces were sent in to ensure a peaceful transfer of power. Governor Young responded by declaring martial law and forbidding any Armed Forces from entering the territory. It was not until April, 1858 that President Buchanan issued a proclamation offering amnesty to those who would obey the law and promising to prosecute those who did not. The proclamation was not styled as an order to disperse, and troops were instructed to act in aid of the execution of civil power.

Dorr Rebellion. A more serious state of affairs was reached in Rhode Island in 1842. Two separate conventions were established, resulting in two separate sets of government officials claiming legitimate authority. Dissatisfaction with the government under the state’s charter (granted by King Charles II in 1663) led to efforts to draft a new constitution.

The governor under the charter declared martial law and requested the President provide federal troops to stop the feared violence. President Tyler declared he had no power to anticipate insurrections. After three more requests, the President decided that intervention might be necessary. But the Secretary of War determined that Dorr’s men had dispersed, and the already-prepared proclamation would not be necessary. The “Dorr Rebellion” ended without a clash of arms. In the case of Luther v. Borden, the U.S. Supreme Court held that whether a state enjoys a republican form of government guaranteed by the Constitution was a political matter for Congress—not the courts—to decide.

Civil War Era. During the decade following the Civil War, and Presidents received more requests for military aid from state governors during these years than all previous decades combined, sometimes receiving simultaneous requests from two rival governors claiming legitimacy in the same state after an election. Resistance to efforts to achieve equal status for newly freed slaves led Congress to pass the Civil Rights Act of 1871 (also called the “Ku Klux Klan Act”), which among other things added a new insurrection provision permitting the President to employ the land and naval forces to enforce civil rights. This authority was used immediately after enactment when President Grant issued a proclamation calling attention to the new law and declaring himself ready to invoke it if necessary. This was followed several months later by a proclamation under the new act commanding conspirators in nine counties in South Carolina to disperse within five days and turn in their firearms, ammunition, and disguises to the local marshals or military officers, and shortly thereafter by a proclamation suspending habeas corpus, as permitted under Section 4 of the act.  Hundreds of suspected Klansmen were arrested over the following months and tried in federal court.

Use of Military Forces as a Posse Comitatus. Since 1792, Congress empowered the President to call out the state militia to overcome obstructions to law enforcement and it had also provided authority in a number of statutes for the President to employ the land and naval forces for certain law enforcement purposes. It was also understood that Congress had vested the federal equivalent of the sheriff, the federal marshal, with the power to call forth the posse comitatus in performance of his duties. The federal marshals and their deputies were thus implicitly empowered to compel the assistance of members of the Armed Forces when force became necessary to execute the process of federal courts, but with the military stating that military force would likely be necessary.

Summons and Call—The Fugitive Slave Act Roils the Republic.

Units serving on a posse were to remain subordinate to the marshal and could not initiate legal proceedings. In some cases, Congress specifically authorized recourse to the posse comitatus for enforcement of specific statutes like the Fugitive Slave Act. Use of that pre-Civil War statute is the matrix for governmental doctrine regarding the use of the military in the role of a posse. Owners whose slaves had escaped to another state were entitled to an arrest warrant for the slaves and to have the warrant executed by the federal marshals. The marshals in turn might “summon and call to their aid the bystanders, or posse comitatus of the proper county … [and] all good citizens [were] commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose.” The act did not specifically authorize the use of the military or militia in its execution, but when Abolitionist threats became imminent in Boston in 1851, the President issued a proclamation requiring “all officers and persons, civil and military to aid and assist by all means in their power in quelling [such] combinations…. ” The Secretary of War sent orders to Army units to be ready to respond to the call of a marshal or deputy, or the certification of a federal judge

When asked by the Senate whether sufficient authority for vigorous enforcement of the Fugitive Slave Act was available, President Fillmore advanced the doctrine that his use of the Army and Navy to enforce federal law was an inherent power, suggesting that it ought not be construed as restricted by the Insurrection Act’s requirements. He also made the argument that all citizens, whether enrolled in any military service or not, may be summoned as a posse comitatus, while conceding doubt as to whether an organized military force acting under military command might be employed in such a manner. The Senate Judiciary Committee declared that it saw no reason to consider military members exempt from duty to serve as a posse comitatus, whether as individuals or organized under their ordinary command structure. See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 866 (1920). 151 Act of Feb. 12, 1793.

Respecting fugitives from justice, and persons escaping from the service of their masters, 1 Stat. 302, as amended by 9 Stat. 462 (1850). Laws permitting the President to use military forces to execute particular laws were apparently understood to place the forces so employed under the direction of civil authorities. See e.g., Neutrality Act.

In June of 1851, a federal marshal in Chicago arrested a fugitive slave on a warrant issued under the act. He called for the assistance of members of the police force and of the state militia to prevent abolitionists from rescuing the prisoner before he could be returned to his owner. The marshal subsequently filed a claim with the Department of the Treasury for reimbursement of the funds he had paid the members of the police force and the militia who responded to his call. Attorney General Caleb Cushing was asked whether the United States was obligated to honor the claim. While this question remained pending, another incident in Boston arose in response to the arrest of fugitive slave Anthony Burns in 1854.

Two batteries of artillery and a detachment of federal troops were sent into the city while the governor also called up the local militia, but when additional forces were requested, military commanders considered further authorization from Washington to be necessary before complying with the requests. The Attorney General took the opportunity, ostensibly in response to the earlier request, to announce a new doctrine regarding the employment of the Armed Forces. Cushing’s response went well beyond the question of whether the “bystanders” contemplated by the Fugitive Slave Act might include members of a state militia when not in federal service, and announced a broader principle—members of the military by virtue of their duties as citizens were part of the posse comitatus.

Cushing declared:

“The posse comitatus comprises every person in the district or county above the age of fifteen years, whatever may be their occupation, whether civilians or not; and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of the sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.”

See xxi Parl. Hist., p.672, 688, per Lord Mansfield.

Passage of the Posse Comitatus Act. Following the Civil War, the use of federal troops to execute the laws, particularly in the states that had been part of the Confederacy, continued even after all other political restrictions had been lifted. By 1877, there was evidence that Republican state governments in more than one southern state owed their continued political existence to the presence of the military and that the activities of federal troops may have influenced the outcome of the Hayes-Tilden presidential election.

The House of Representatives, controlled by a Democratic majority, passed an Army appropriation bill which expressly prohibited use of the Army to shore up Republican state governments in the South, or more precisely, to shore up either side of the political dispute in Louisiana or anywhere else.

 The Senate, controlled by a Republican majority, refused to accept the provision. No compromise could be reached, and the session ended without passage of an Army appropriation bill. Money to pay the Army was subsequently appropriated in a special session, without reference to restrictions on use of the Army. But when the issue of Army appropriations next arose, the House included a posse comitatus section. The Senate accepted the House version with minor amendments.

Colonel William Winthrop opined that, the occasion for its enactment having passed, the act remained “a mere impediment to the constitutional exercise of the executive power of the nation.” While federal marshals could no longer avail themselves of military assistance to arrest individuals charged with offenses against the United States, he stressed that wherever a combination existed to resist the enforcement of the laws, the President always could invoke the Insurrection Act.

While Winthrop made reference to the lengthy list of exceptions to the prohibitions, others discerned a negative impact on civilian law enforcement. While soldiers serving on a posse remained subordinate to civilian rules and law enforcement officers, troops called out under the Insurrection Act came to be viewed as an independent military force enforcing martial law against the American people. Mining communities such as the Silver Valley in North Idaho’s Shoshone County still remember the notorious Bull Pens where residents were imprisoned by federal troops during the Mining Wars of 1892. Most Americans who think about such things see Posse Comitatus as a hallowed tradition of antimilitarism. Despite early efforts on the part of the executive branch to get the provision repealed or amended, the Posse Comitatus Act has remained, with some changes, since its passage.

Presidential vs. Congressional Powers. The Constitution requires the President take care to see that the laws are faithfully executed, designating him as Chief Executive and Commander in Chief of the Armed Forces. In this dual capacity, the president possesses broad prerogatives pursuant to Article IV, Section 4 of the Constitution, which guarantees the states a republican form of government and protection against invasion and domestic violence. The Supreme Court has made it clear that the President is not dependent upon express constitutional or statutory authorization for the exercise of his powers. Thus, he may meet an emergency by appointing a marshal to protect a threatened Supreme Court Justice, although no statute expressly authorized appointment for such purposes. The President must resist invasion by an enemy with force, though Congress has yet to declare war. When an emergency arises threatening the freedom of interstate commerce, transportation of the mails, or some other responsibility entrusted to the federal government, he may call upon “the army of the Nation, and all its militia … to brush away the obstructions.” Some commentators feel that this implied or incidental constitutional authority to use the Armed Forces not only exists in the absence of congressional direction, but is immune from congressional direction or limitation.

Conspiracy Theories and the Insurrection Act. The fact that President Biden’s administration has gone to great lengths to build a case against Republicans who support former president Trump’s policies adumbrates the scenario of how the Insurrection Act was utilized to summon all elements of the government in aid of suppressing the Burr Conspiracy. A Constitutional crisis could materialize if the 2022 election is somehow prevented or nullified by Presidential action; i.e., exactly the charges being leveled against Trump and his supporters. Majorities of Trump supporters may soon be elected to both the Senate and the House of Representatives. This prognostication was anticipated by most of the news media at least up until about the time the raid was launched to execute a search warrant on the former President’s residence. According to many news outlets, Democrat candidates are now faring better when some voters are surveyed in some states.

Dual Authority. Congress shares constitutional power over the laws and Armed Forces with the President. The Constitution gives Congress the power to make the laws whose faithful execution the President must take care to observe and which carry into execution Congress’s own powers and those of the President. It likewise vests Congress with the power to establish, maintain, and regulate the Armed Forces; and with the power to describe the circumstances under which the militia may be called into federal service.

The Supreme Court has shed some light on the coordination of presidential and congressional powers concerning use of the military to enforce civilian law. The Court has pointed out that the President’s power under the Guarantee Clause of Article IV, Section 4, which guarantees the states protection against domestic violence, is only provisionally effective until such time as Congress acts. And the President may not always use the Armed Forces to meet a domestic emergency when Congress has previously resisted an invitation to sanction their employment. Finally, even when Congress has disclaimed any intent to limit the exercise of the President’s constitutional powers, the President’s implied and incidental powers will not always trump conflicting, constitutionally grounded claims.

Constitutional Exceptions and Congressional Compromise. The Posse Comitatus Act does not apply “in cases and under circumstances expressly authorized by the Constitution.” It has been said that the Constitution contains no provision expressly authorizing the use of the military to execute the law in any specific manner. The reference to constitutional exceptions was included as part of a face-saving compromise that consequently should be ignored. When the phrase was added originally, those who opposed the Posse Comitatus Act believed that the Constitution vested implied and/or inherent powers upon the President to use the Armed Forces to execute the laws; those who urged its passage believed the President possessed no such powers. As initially passed by the House, the bill contained no constitutional exception. The Senate version contained an exception for instances authorized by the Constitution whether expressed or otherwise.

Federal troops were called to Chicago in July 1894 to quell riots accompanying the railroad strikes. President Grover Cleveland did not issue a proclamation for rioters to disperse until several days after violence had begun, after learning that troops had been compelled to fire on a mob in a nearby town. Another proclamation was issued the next day to remove further obstructions to the mail and execution of U.S. law occasioned by the strike as it spread westward. The governors of the afflicted states did not call for federal assistance.

It appears that obtaining civilian deputies to assist marshals against the strikers was made difficult due to the fact that popular sympathies were with the strikers, leading the civilian authorities to prefer shifting the responsibility to the Army. Federal troops were also used to recapture trains stolen by various “industrial armies” of disaffected miners and laborers.

In 1885, resistance in Utah to the “Edmunds law” for the suppression of polygamy caused the governor of that territory to seek federal assistance, which was granted.

Animosity toward Chinese railroad laborers and miners led to major disturbances and to calls for federal troops in a number of western states and territories in 1885-1886.

Proclamations were issued for the state of Washington, but federal troops sent there met with no resistance.

Federal troops were employed in Montana in 1897 to protect a prisoner charged with murder from a potential mob lynching, but this was done on the order of the local commander under “emergency authority,” without a presidential proclamation.

A proclamation was issued in 1914 to employ troops to suppress a riot in Arkansas to support the courts and protect government property.

A large task force of regular troops, National Guard, federal marshals, and other police was assembled to protect the Pentagon during the 1967 anti-war demonstration known as the March on the Pentagon. In connection with this effort, the Army authorized a widespread covert intelligence operation to infiltrate protest groups who were planning to march, and radio communications were also monitored. Section 332 (now codified at 10 U.S.C. § 252) was considered in order to provide the legal justification, but rejected because violence was merely projected and a proclamation was thought to be too difficult to frame under such circumstances. In the end, authorities decided to rely on a non-statutory basis regarded as an implicit sovereign right to protect government property, although section 332 was held in reserve in case the level of violence called for federalizing the National Guard.

The National Guard was called into service during a postal strike in 1970 to “execute the laws of the United States as they relate to the Post Office Department.” The cited authority for this action was the Economy Act of 1932, which led to some criticism because that statute does not provide for the use of the Army.

In 1973, the Army became involved in a federal law enforcement operation to quell a civil disturbance on the Pine Ridge Reservation in South Dakota after some members of the American Indian Movement seized and occupied the village of Wounded Knee to demonstrate their grievances. The Attorney General advised President Nixon to send federal troops to the area, presumably under the authority of 10 U.S.C. § 332 (now § 252), but military advisors counseled against the idea. Instead, some 350 federal officers were sent to the scene, including a paramilitary group from the U.S. Marshals Service.

Nevertheless, the 82d Airborne Division was tasked to provide a 1,000-man contingency force as well as some observers, and regional National Guard units provided surveillance aircraft and other equipment. The troops from the 82d Airborne were not deployed, but some questioned whether military aid supplied to civilian law enforcement was permissible under the Posse Comitatus Act. This led to litigation and eventual legislation to authorize some military support to civil authorities.

In 1987, President Reagan issued a proclamation to order rioting prisoners in the federal penitentiary in Atlanta, Georgia, to disperse. He authorized the Secretary of Defense to call up National Guard units or members to suppress the violence, specifying that the law enforcement policies determined by the Attorney General were to be followed. Local authorities were able to negotiate the release of hostages the prisoners had taken and bring an end to the trouble before troops arrived.  Civil Rights Protection Section 253 of Title 10 (previously section 333 of Title 10) permits the President to use the Armed Forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action “obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”  This section implements the Fourteenth Amendment guarantee for equal protection and does not require the request or even the permission of the governor of the affected state.

The provision lay dormant after the end of Reconstruction until 1957. Then President Eisenhower ordered a battle group of the 101st Airborne Division into Little Rock and federalized the entire Arkansas National Guard. The President effectively deprived the governor of forces that had been used to enforce the governor’s view of law and order. Presidents Kennedy and Johnson followed the Little Rock precedent to deal with resistance to court-ordered desegregation in a number of Southern states.

In 1962, after the governor of Mississippi attempted to prevent black student James H. Meredith from registering at the University of Mississippi at Oxford, President Kennedy sought to enforce the court order with federal marshals. When marshals met with resistance from state forces and later a riotous mob, President Kennedy federalized the Mississippi National Guard and ordered active Army troops already gathered in the area to take action. The President’s proclamation to disperse named the governor and other state officials as forming the unlawful assemblies obstructing the enforcement of the court order, citing as authority both sections 332 and 333. President Kennedy followed a similar course of action to confront state resistance to court ordered desegregation in Alabama twice in 1963. President Johnson cited the same authority in 1965 to deploy troops, both regular Army and federalized National Guard, to Alabama to protect civil rights marchers as they made their way from Selma, AL, to Montgomery.

Obstruction cases dismissed for violations of Posse Comitatus Act. The take-over at Wounded Knee and events involved a series of federal criminal charges that included obstructing a law enforcement officer in the lawful performance of his duties during the course of a civil disturbance. Military assistance provided by federal authorities at Wounded Knee undermined the prospects of a successful prosecution for obstructing law enforcement officers by casting doubt on whether they were performing their duties lawfully, an element necessary for conviction. The 1981 legislation contains explicit grants of authority for military assistance to the police— federal, state, and local—particularly in the form of information and equipment, along with restrictions on the use of that authority. These exceptions are found in Chapter 15 of Title 10, U.S. Code, Military Support to Civilian Law Enforcement Agencies (§§271-284).

Intelligence and Undercover Agents. The Wounded Knee cases spawned uncertainty as to the extent to which military authorities might share technical advice, the results of reconnaissance flights, or any other forms of information with civilian law enforcement authorities. Section 271 (previously Section 371) specifically permits the Armed Forces to share information acquired during military operations and in fact encourages the Armed Forces to plan their activities with an eye to the production of incidental civilian benefits. The section allows the use of military undercover agents and collection of intelligence concerning civilian activities. These provisions, however, only apply where there is a nexus to an underlying military purpose. The committee report suggested that the types of intelligence operations conducted by the Army in preparation for possible civil disturbances in previous decades were not meant to be authorized.

Navy & Marines Excluded from Act? The Posse Comitatus Act proscribes use of the Army or the Air Force to execute the law. It says nothing about the Navy, the Marine Corps, the Coast Guard, or the National Guard. The amendment first offered to the Army appropriation bill in 1878 to enact the Posse Comitatus provisions would have prohibited use of “any part of the land or naval forces of the United States” to execute the law. Some commentators believe that sponsors subsequently limited the posse comitatus amendment to the Army appropriation bill in order to avoid challenges on grounds of germaneness. The courts have generally held that the Posse Comitatus Act by itself does not apply to the Navy or the Marine Corps.

Coast Guard. The Posse Comitatus Act likewise says nothing about the Coast Guard. The Coast Guard was formed by merging two civilian agencies, the Revenue Cutter Service and the Lifesaving Service. Although created and used for law enforcement purposes, the Cutter Service had already been used as part of the military forces of the United States by the time the Posse Comitatus Act was enacted.

The Coast Guard is now a branch of the Armed Forces, located within the Department of Homeland Security, but relocated within the Navy in time of war or upon the order of the President. The act does not apply to the Coast Guard while it remains part of the Department of Homeland Security. and consequently to any generally applicable directives or instructions issued under the Department of Defense or the Navy.

The Coast Guard is statutorily authorized to perform law enforcement functions. Thus, the Coast Guard is exempt from The Posse Comitatus Act.

National Guard. The act is silent as to what constitutes “part” of the Army or Air Force for purposes of proscription. There is little commentary or case law to resolve questions concerning the coverage of the National Guard, the Civil Air Patrol, civilian employees of the Armed Forces, or regular members of the Armed Forces while off duty. Strictly speaking, The Posse Comitatus Act predates the National Guard only in name, for the Guard “is the modern Militia reserved to the States by Art. I, § 8, cls.15, 16, of the Constitution,” which has become “an organized force, capable of being assimilated with ease into the regular military establishment of the United States.” There seems every reason to consider the National Guard part of the Army or Air Force, for purposes of the Posse Comitatus Act, when in federal service. When not in federal service, historical reflection might suggest that it is likewise covered. Recall that it was the state militia, called to the aid of the marshal enforcing the Fugitive Slave Act, which triggered Attorney General Cushing’s famous opinion. And that The Posse Comitatus Act’s reference to “posse comitatus or otherwise” is a “they-are-covered-no-matter-what-you-call-them” response to the assertion derived from Cushing’s opinion that troops could be used to execute the law as long as they were acting as citizens and not soldiers. On the other hand, the National Guard is a creature of both state and federal law, a condition which as the militia it has enjoyed since the days of the Articles of Confederation. The courts have said that members of the National Guard when not in federal service are not covered by The Posse Comitatus Act. Similarly, the DOD Instruction is only applicable to members of the National Guard when they are in federal service.

Opinions and Conclusions. The Posse Comitatus Act might seem very fluid and flexible to a President who wishes to use the Marines or Coast Guard in order to intimidate the opposition. President Trump explored such issues and contemplated using the Insurrection Act and related laws to gain military support against a concerted effort to protect the results of the election.

It is presently impossible to assess how military intelligence echelons discern the potential for interference in the upcoming national election. Interference by China or other interests seems imminent. Intelligence reports are certainly conflicted due to alleged manipulation by various intelligence agencies. It seems evident but hard to document how members of the various military officer corps are split in their assessment of the threats.

Not even military intelligence can say with certainty which officers might remain faithful to a traditional understanding of the U.S. Constitution. Some careerists will break any direction they see their careers can benefit. Others will covertly infiltrate other networks of military officers opposed to their own views in order to gain intelligence for one group of intelligence officers or another. Most officers probably struggle to understand their duties within a government torn by conflicting loyalties. This results in waiting for leadership and seeking reliable allies on whom to rely within the officer corps. Someone like Governor DeSantis seems to have the right military background to bring together the faithful remnant who want to uphold their oaths to the U.S. Constitution, while respecting Rule of Law and Posse Comitatus. He would also seem to be the most candidate likely to respect long-standing military policy and tradition against any branch of the service usurping civilian authority. His experience as a JAG officer is the basis of my personal opinion about the Governor of Florida.

Certain harbingers seem to point toward a revisiting of many issues discussed herein. The Republic is teetering and Americans should pray for unity among our armed forces and respective chains of command. Peace should be our by-word and use of temperate language is imperative. Americans have confronted difficult times before. Those endued with wisdom have stood at the helm because Americans eschew radicalism of any persuasion. The American people remain prepared as bystanders committed to assist against threats of any kind.

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