The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (pdf)
Updated November 6, 2018
... Case law indicates that “execution of the law” in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks assigned to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government. Questions concerning the act’s application arise most often in the context of assistance to civilian police. At least in this context, the courts have held that, absent a recognized exception, the Posse Comitatus Act is violated when (1) civilian law enforcement officials make “direct active use” of military investigators; or (2) the use of the military “pervades the activities” of the civilian officials; or (3) the military is used so as to subject “citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.” The act is not violated when the Armed Forces conduct activities for a military purpose.
The language of the act mentions only the Army and the Air Force, but it is applicable to the Navy and Marines by virtue of administrative action and commands of other laws. The law enforcement functions of the Coast Guard have been expressly authorized by act of Congress and consequently cannot be said to be contrary to the act. The act has been applied to the National Guard when it is in federal service, to civilian employees of the Armed Forces, and to off-duty military personnel. The act probably only applies within the geographical confines of the United States, but supplemental provisions of 10 U.S.C. §§ 271-284 appear to apply worldwide. Finally, the act is a criminal statute under which there has been but a handful of known prosecutions. Although violations will on rare occasions result in the exclusion of evidence, the dismissal of criminal charges, or a civil cause of action, as a practical matter compliance is ordinarily the result of military self-restraint ...
Americans have a tradition, born in England and developed in the early years of our nation, that abhors military involvement in civilian affairs, at least under ordinary circumstances. It finds its most tangible expression in the 19th century Posse Comitatus Act, 18 U.S.C. Section 1385, which forbids use of the Army and (as amended) the Air Force to execute civil law except where
expressly authorized.
The exception documents a contrary component of the tradition. Congress has expressly approved the use of the Armed Forces in extraordinary circumstances or where federal manpower to enforce the law was seen as inadequate. Striking the balance between rule and exception has never been easy, but failure to do so has often proven unfortunate. If the rule is too unforgiving, a Shays’s Rebellion may go unchecked. If exceptions are too generously granted, a Boston Massacre or Kent State tragedy may follow ...
The Magna Carta provides the first recorded acknowledgment of the origins of the AngloAmerican tradition against military involvement in civilian affairs with its declaration that “no free man shall be ... imprisoned ... or in any other way destroyed ... except by the legal judgment of his peers or by the law of the land” ... Three hundred years after the passage of the Edwardian statutes, Lord Coke and other members of Parliament read these due process and law of the land requirements to include a broad prohibition against the use of martial law in peacetime, an interpretation they compelled King Charles I to acknowledge ...
The Constitution continued these themes, albeit with greater authority vested in the federal government. It provided that a civilian (the President) should be the Commander in Chief of the Army and Navy of the United States, and civilian authorities (Congress) should be solely empowered to raise and support Armies, provide and maintain a Navy, and make rules for their
government and regulation. The Bill of Rights limited the quartering of troops in private homes, and noted that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Constitution, on the other hand, explicitly permitted Congress to provide for calling out the militia to execute the
laws, suppress insurrection, and repel invasion ...
Lord Coke and his colleagues, in crafting the Petition of Right of 1628, found within that chapter of the Magna Carta and subsequent explanatory statutes that are the antecedents of our constitutional due process clauses a prohibition against martial law. In times of peace, this proscription would not abide either the quartering of troops among civilians or any form of martial law, be it imposed by tribunal or more summarily dispatched by soldiers controlling or punishing civilians.
The Declaration of Independence lists the imposition of martial law upon us among those affronts
to fundamental liberties that irrevocably ruptured our political ties to Great Britain. Finally, it is possible to see the protrusions of a larger, submerged constitutional principle which bars the use of the Armed Forces to solve civilian inconveniences in the Second, Third, and Fifth Amendments, with their promises of a civilian militia, freedom from the quartering of troops
among us, and the benefits of due process.
This view is not without judicial support. The courts have demonstrated a rather long-standing
reluctance to recognize the authority of military tribunals over civilians ...
On the other hand, the Constitution appears to recognize that military force might occasionally be called for in handling domestic affairs. It permits Congress to authorize the use of the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” And it guarantees the states protection against invasion or usurpation of their “republican form of government,”
and, upon the request of the state legislature, against “domestic violence.” While states are prohibited from keeping their own standing armies, they retain some control over their militias, subject to any constraints Congress may constitutionally impose, including the authority to call forth those forces to suppress insurrections or quell civil disturbances. The Constitution neither authorizes nor proscribes martial law (which is said to exist when civil authority is supplanted by military rule due to war or similar emergency), but it has been proclaimed on rare occasions ...
The case of conflicting congressional and presidential powers is easily stated if not easily resolved. On one hand, the Constitution requires the President to take care to see that the laws are faithfully executed, and designates him as Chief Executive and Commander in Chief of the Armed Forces. In this dual capacity, the presidency is the repository of both extensive responsibilities and broad prerogatives, not the least of which flow from Article IV, Section 4 of the Constitution, which guarantees the states a republican form of government and protection against invasion and domestic violence ...
On the other hand, 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 clearest statutory exceptions to the Posse Comitatus Act are found in the Insurrection Acts .. in which Congress has delegated authority to the President to call forth the military during an insurrection or civil disturbance. The modern version has changed little from the original enactments ... The three main authorities differ according to which constitutional provision they are meant to implement, but the provisions have often been used together ...
Section 251 of Title 10 .. authorizes the President to use the military to suppress an insurrection at the request of a state legislature, or its governor, in the event the legislature cannot be convened. It is meant to fulfill the federal government’s
responsibility to protect states in the event of “domestic violence” ...
The most recent invocation of 10 U.S.C. § 251 ... occurred in 1992, when the acquittal of police officers on charges of beating motorist Rodney King sparked rioting in Los Angeles ...
Section 252 of Title 10 .. delegates Congress’s power under the Constitution to call forth the militia to the President, authorizing him to determine that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States” and to use the Armed Forces as he considers necessary to enforce the law or to suppress the rebellion ...
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 ...
Section 253 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 was enacted to implement the Fourteenth Amendment guarantee for equal protection. It does not require the request or even the permission of the governor of the affected state ...
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 ... 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 ...
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 .. 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 Armed Forces, when in performance of their military responsibilities, are beyond the reach of the Posse Comitatus Act and its statutory and regulatory supplements. Analysis of constitutional or statutory exceptions is unnecessary in such cases. The original debates make it clear that the act was designed to prevent use of the Armed Forces to execute civilian law. Congress did not intend to limit the authority of the Army to perform its military duties. The legislative history, however, does not resolve the question of whether the act prohibits the Army from performing its military duties in a manner that affords incidental benefits to civilian law enforcement officers ...
The act is limited to “willful” misuse of the Army or Air Force. The Senate version of the original act would have limited proscription to “willful and knowing” violations; the House version had no limitation.387 The compromise that emerged from conference opted to forbid only willful violations, but neither the statements of the managers nor statements elsewhere in the
debate explain what the limitation means ...
Existing case law and commentary indicate that “execution of the law” in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks ordinarily assigned not to them but to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government ...
The Posse Comitatus Act is a criminal statute under which there has never been an officially reported prosecution,441 although it appears there were two prosecutions shortly after the act was passed. While some courts have concluded that it does not provide a private right of action on behalf of anyone who claims to have suffered some injury due to its violation, it has been invoked with varying degrees of success, as described below, to challenge the jurisdiction of the courts; as a defense in criminal prosecutions for other offenses; as a ground for the suppression of evidence; as the grounds for, or a defense against, civil liability; and as an impediment to proposed actions by the Armed Forces ...
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