The Posse Comitatus Act results from the American abhorrence of not using a standing military to impose public laws against its citizens. In the mid-1700s, the use of the British army to enforce unpopular tax laws helped ignite the American Revolution; the police powers of those troops left a nasty taste upon the young republic and its inhabitants. Yet, even with such disdain for the “power of the county,” many federal officials in the early nineteenth century continued to deputize troops to assist local law enforcement.
The practice of using posse comitatus in the aftermath of the Civil War entangled it with state rights and race issues. Federal officials deputized occupation troops in the south to enforce voting and other civil rights laws. Using such powers was highly unpopular with southerners and ended with the election compromise of 1877. Samuel Tilton, a Democrat, had beaten Rutherford Hayes, a Republican, in the popular vote of 1876. In the settlement, several southern states supported Hayes in the Electoral College in exchange for troop withdrawal. The compromise ended Reconstruction and allowed Congress to legislate criminal charges against the use of the military for posse purposes.
The Posse Comitatus Act (PCA) of 1878, as amended (Title 18, USC, Section 1385), simply states, “Whoever, except in cases and under the circumstances expressly authorized by the Constitution or Acts 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.” The wording is simple and perhaps obscure. Former Reagan civil defense director John Brinkerhoff stated in 2002, “Seldom has so much been derived from so little.” Many Presidents have walked the fine line defined in the vague legislation, often calling upon active federal troops to supplement local law enforcement in the management, preemption, and deterrence of violence against domestic populations. The legality and ability to use the military are often justified under the many exemptions to the law, but the use of troops still falls under the auspice and control of local law enforcement; the power of the assisting military is limited to assistance and not enforcing the law.
The military, all branches except the Coast Guard, seem to have a long-standing reluctance to participate with local police departments in search, seizure, and arrest; yet the PCA, as authorized by the Insurrection Act, allows for federal troops acting under presidential power to enforce laws. President Eisenhower used it to implement school integration; President Johnson and President George H. W. Bush used it to suppress race riots. Presidents Obama and Trump used the military to support the Border Patrol during their terms. In brief, a President has enormous powers to protect the rights of the citizens with military force.
The Posse Comitatus Act served a political purpose to move America forward during the late 1800s. Its value to prevent the overuse of military enforcement of civilian laws is still sound. Yet, considering the ever-changing security threats to America, the exceptions to the PCA seem to be more vital than ever; the authority of the President and Congress to quell threatening emergencies is paramount to our security. The American people accept the use of the military when dictated, and they are quick to forget its use, especially when defending our nation against its enemies. In short, active-duty military personnel should be allowed to serve under state and Presidential command, and the Posse Comitatus Act, with it exceptions, should remain federal law.
Lawyair On The Run 