The Myth of the Posse Comitatus Act
I recently put forth a rudimentary plan for utilization of existing military resources in stanching the flow of illegal trespassers across our southern border with Mexico. Many were the commenters who were quick to tell me that such a thing is impossible because it is proscribed by the Posse Comitatus Act. This is one of those issues that naysayers like to throw up as roadblocks to any attempts to settle the problem of rampant illegal immigration. “We can’t use the military to patrol our borders because of the Posse Comitatus Act,” they protest breathlessly with a reverence for that act that hints of constitutional origins, and therefore, sacrosanct. Well hold on, all you legal buckaroos, while we take a closer look at this statutory critter that so many profess to know and understand and are even quicker to invoke. Here it is in all its sanctity:
Sec. 1385. Use of Army and Air Force as posse comitatus
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.
Now that’s not really all that complicated, is it? What’s not to understand? The simple legislative act says that the federal government cannot use our military forces to execute or enforce laws. The law was originally enacted by a Republican Congress as a quid pro quo to Southern Democratic congressmen whose backing was needed to decide the presidential election of Rutherford B. Hayes. Southerners were sick of the Union Army’s occupying forces’ interference in matters of local law and their representatives in Congress saw an opportunity for some horse trading. Republican supporters of Hayes agreed to the removal of federal troops from the occupied Southern states and sealed the deal with this brief bit of legislation that prohibited the use of federal troops for the purpose of enforcing civil and criminal statutes.
So the hallowed Posse Comitatus Act was really nothing more than a clever legislative gambit by southern congressmen to get the heavy boot of northern forces off the necks of their southern constituents, a rather ignominious birth for a minor piece of legislation that is now foolishly considered Holy Writ by too many of the uninformed.
But let’s get down to specifics; Congress, as always, covered its butt with the insertion of the weasel words:
“…except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,”
Thus, in an act of Congress requiring no more than fifty-two words, that august body let itself off future hooks with that excepting phrase. And do not delude yourself into believing that was by accident. Quite obviously, the lawmaking body of this country wanted to reserve unto itself the power to use federal forces in domestic crises. It would appear then that the Posse Comitatus Act says whatever the Congress says it does. And if that Congress determines that the massive incursions on our border from Mexico constitute an exceptional threat, there is nothing in the law to prevent this nation from defending that border with the military forces necessary to do so.
Crossposted at American Thinker
Category: Illegal Immigrants
Thank you! Yeah, the Posse Comitatus Act was an ignoble political bargain to pave the way for Jim Crow, in exchange for the White House. Crass, cowardly, and utterly typical of the political class. Now, it may be good policy in general – I tend to think it is, except in cases of natural disasters – but that’s a policy issue, not a constitutional issue.
You are absolutely correct in that Congress can circumvent PC. The real question is why would it? The federal government has access to military force that can be used without the PC problems, i.e., the National Guard mobilized under Title 32 of the US Code. See https://www.academia.edu/3827904/The_Role_of_the_National_Guard_in_Homeland_Security.
Guard or Active Duty I could care less which, just secure the damned borders!
Our current CiC and VP love them some drones, use them too along the borders. No need to have it entirely fenced overnight… use drones and other surveillance media in the meantime.
It is not a lack of ability or capabilities, or even the law inhibiting action, it is a lack of leadership.
It’s not hard to see what the hang- up is with using troops to secure the border. The trouble will start the first time a soldier fires a shot. Then what do we have? A nightmare, one which no politician in his right mind is going to even begin to approach. Nobody in power in this country wants the picture of a dead “refugee” on his desk, and God help us all if it happens to be a child. Political heads would roll and soldiers would go to jail.
THAT is why the issue has stagnated.
Bobo, the obvious reason is that National Guard units have to be activated which means job disruption for those called and additional costs to the taxpayers to pay salaries, benefits and support.
On the other hand, running alien interdiction operations in the desert or riverine environment of the border area by active duty forces provides realistic training for those troops we are already paying to be full time soldiers, a twofer for taxpayers.
Great idea PT! A double win. Good training and a secure border.
Not exactly….
Once its Federally mobilized it falls under PC. The untried workaround has been to have the state activate the unit, then have the Feds pick up the tab later.
I say untried, as no one who has been arrested/detained when this relationship was in place has had an opportunity to raise the issue in Federal Court.
Correct me if I’m wrong, but didn’t we have Soldiers or Marines patrolling the border a few years back?
I seem to remember in the news something about a Mexican teenager (or young adult) being killed after firing at a member of the military.
http://ndsn.org/july97/goats.html
This is what I was thinking of … 1997
The kid had fired a .22 in the general direction of the Marines. He had supposedly an old open-sight .22, the Marines were 150-200 yards away, dressed in ghillie suits, and after the kid shot they stalked him for 20 minutes before shooting him. Both the military and a grand jury declined to indict the Marines… a lot of people still think they got away with murder.
“The Kid” had also shot at some border patrol agents six months earlier, a fact that was raised in the initial Grand Jury and at trial but was often left out of news reports.
A needless tragedy, but not a criminal act on the part of the USMC Corporal.
Thank you for the clarification (s) and background on this law. As with any law it can be subject to interpretation.
As has always been the case, the only thing lacking is political will. Everything else is possible.
Think about it: Four division HQs at bases near our borders (Fort Hood, Fort Bliss, Fort Huachuca and Twentynine Palms.) 3 Army divisions, one USMC division. Each division could have two BCTs forward deployed and one in reserve, staying in temporary encampments and set up a rotation like the Armored Cavalry Regiments used to do in Germany.
Combat Engineers have more than enough equipment and know-how to construct obstacles that will keep out 90% of the border crossers. Surveillance assets including scout helicopters, ground surveillance radars and scouts in OPs (drawn from the BCT’s organic recon unit) can cover any gaps.
It wouldn’t be difficult. Expensive? I guess it depends on whether you could offset the cost of our current porous border, which is in the billions.
Navy Sea-Bees and Army Engineers could most definitely handle the task of, at the very least, getting obstacles put up in the high traffic areas.
I’ve advocated exactly this point for years.
Been there, done that and have the T-shirts.
Whoops, embarrassed now – I should have read Poetrooper’s post from yesterday, he laid it out pretty much the same way I just did, only in more detail.
I guess great minds think alike?
From what I remember talking to a few folks that managed to land those TDY assignments – Yes, we have had troops assisting in monitoring the border in the past. The key was that they did NOT perform LEO duties. They were ground radar operators, air surveillance, OP/LP all of whom reported back to BP who handled any follow up/interdiction.
Also – Act of Congress refers to statutes or legislation that are formally enacted by Congress through the legislative powers granted to Congress by the U.S. Constitution.
To become an Act of Congress, first a bill or a resolution has to be passed by a majority of members of both the House of Representatives and the Senate. The bill or resolution is sent to the chamber through a committee. The bill is sent back to the same committee after the bill is passed by both the chambers. The committee then sent the bill or resolution to get the president’s assent. The bill or resolution becomes an Act of Congress:
ie you cannot use troops for LEO duties unless a new law is passed or it is in defense of the nation…
Patrolling the US/Mexican border IAW Posse Comitatus is nothing new. The US Army did it extensively between 1911 and 1921. The work around then, as it could be now, was to have a US Marshall with each unit to perform the strictly law enforcement activity.
This is much in the same way that the USCG Law Enforcement Detachments on US Navy ships works today.
An interesting side note:
The US Coast Guard apparently does not fall under any sort of restrictions like the rest of the military. The US Coast Guard is part of the Department of Homeland Security.
This is my understanding as to how they can do ship searches and drug interdiction and act in a direct LEO capacity.
Something I did not know is that members of the USCG worked as US Air Marshals after 9-11.
(With the caveat that I did not research the information, only read it on Wikipedia, so take it with a grain of salt.)
Title 14 of the USC gives law enforcement powers to all commissioned officers, warrant officers and petty officers of the USCG.
The Navy and Marine Corps are also not barred by Posse Comitatus either. They are regulated by DoD/DoN directives, not by PC.
One of the few legitimate tasks of the federal gubmint is national security. How much nuance is required to make the leap to a conclusion that securing the nation is not suggested, not encouraged, not something that folks maybe ought to consider, but instead is required?
Securing the national is the entire purpose of the military. It is a duty, not an option.
Not sure why people say no? We in the Air Force uses Posse Comitatus for just about anything ridiculous. SFS and Firefighters both get called for weak/miniscule things. Helping with the border would be more important than some of things I seen them get call out for.
Unfortunately there are too many people sitting at Capital Hill that are too worried about their next election (i.e. themselves) to even consider enacting such legislation…to get past the President’s desk would be a miracle on the same level as Jesus walking on water.
As OWB stated the primary purpose of our military is to protect our sovereign border. Somewhere along the way we lost sight of that, mostly because we have been more concerned with containing our enemy(ies) in their yard and not ours.
This should not be a political football, and Nancy Pelosi can kiss the darkest portion of my ass…because illegals are NOT Americans no matter how many sound bytes she gives the media to run with.
I can definitely see Posse Comitatus as a legal barrier between the U.S Citizen and the very few LTC. Bateman’s and their willingness to shoot us to disarm us, but, and this is a capital BUT, since when are foreigner’s that are crossing the border’s to enter into OUR country illegally American citizen’s. Opp’s guess what, they do not fall under Posse Comitatus.
Sometimes you just have to smile.
Posse Commutation only applies to law enforcement not national security. Seems to me that all you need is to declare the open border a clear and present danger and military security ops are open for business. All they’d be able to do is drop kick them back across he border or engage them. You’d have to attach Leo’s if you want to arrest anyone though.