Any legal scholars here that can explain "Posse Comitatus Act" vs "Insurrection Act"?

[redgreenandblue]

I'm trying to wrap my head around this. My understanding is that the "Posse Comitatus Act" forbids the use of the military on US soil, whereas the "Insurrection Act" allows it under some circumstances. The later was used e.g. to protect the Little Rock Nine.

So, if Trump uses the military to stop the riots, could he in principle be prosecuted or not?

[Fullduplexxx]

1. Wow crickets .... maybe you should have titled this "circumcision yes no ?" Or something similar

[redgreenandblue]

5. ...

[fescuerescue]

10. Probably because their aren't that many legal scholars here

Perhaps a law forum might be a better place to seek such expertise.

[highplainsdem]

2. Explained in an OP about this that I posted two days ago:

https://www.democraticunderground.com/100213513271



See the links to the Twitter thread from law professor Steve Vladeck.

[redgreenandblue]

4. Thanks, I'll check that out.

[Takket]

3. The very short version:

Insurrection act: government can use the military to put down rebellion.

Posse: no you can’t.

[melm00se]

6. The text of each gives some clarity

Posse Commitatus Act states

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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.”

Insurrection Act

Whenever the President considers 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 in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Posse Commitatus forbids the use of the military as law enforcement unless explicitly allowed under the constitution and/or an act of Congress.

The Insurrection Act allows for the President to deploy the military to to enforce the laws when the situation prevents normal law enforcement to act.

Posse Comitatus is not an absolute prevention upon using the military as a law enforcement mechanism. The use of the Armed Forces can be authorized by Act of Congress or if/when the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

[redgreenandblue]

8. Thanks.

The way I understand this, in practice it is essentially a matter of scale. When one executive body becomes overwhelmed, the next "bigger" one can be called in.

[melm00se]

9. A great resource for questions like this

is the Legal Information Institute created by Cornell University.

Many topics, especially Constitutional ones, carry additional commentary and analysis.

[melm00se]

14. The PCA was created

because the US Marshall service (who was tasked with policing territories) were finding themselves unable to police these huge tracts of territories so they (on their own authority) would call upon the US Army to help them.

The Executive and Legislative Branches found that the Marshall's actions were usurping their authority so they acted to limit the marshall's ability and added additional punishments.

[Roland99]

13. Thank you

[uponit7771]

15. +1, So it sounds like Trump needs a state permission or congress to act

[jmg257]

7. Title 10 USC S252

Whenever the President considers 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 in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Section 1385, in 1878. Congress has also enacted a number of statutes that authorize the use of land and naval forces to execute their objective. The Posse Comitatus Act outlaws the willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an act of Congress. Nov 6, 2018

So many times these have been changed amended and renumbered so its very confusing. In 2007 Bush Signed the John Warner Act which pretty much did away with the PC protection. That has since been change again and reinstated.

Pres is CinC of the Militia (National Guard) when used in federal service - per constitution. The military a bit more sketchy due to PCA.

[qazplm135]

11. PCA is for normal times

Normally, you can't do it.

Insurrection Act is for a limited purpose/emergency.

[DetroitLegalBeagle]

12. Essentially this.

PCA forbids the use the military for law enforcement, except for a few exceptions. Using them under the Insurrection Act is one of those exceptions. The Insurrection Act has been used multiple times to deal with riots, like Los Angeles Riot and the Detroit Riot.

This was nearby my mom's old house after President Johnson sent the Army into Detroit in 1967.

[WyattKansas]

16. I remember the movie 'Tank' when someone said Posse Comitatus Act to the corrupt sheriff...

And the corrupt sheriff replied, 'Did you just call me a pussy communist?'

Who wants to bet tRump said the same thing when someone mentioned Posse Comitatus Act to him?