Posse Comitatus Act and the US Military on the Border
What the National Guard Can and Cannot Do
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On April 3, 2018, President Donald Trump proposed that U.S. military troops be deployed along the United States border with Mexico to help control illegal immigration and maintain civil order during construction of the secure, border-length fence recently funded by Congress. The proposal brought questions of its legality under the 1878 Posse Comitatus Act. However, in 2006 and again in 2010, Presidents George W. Bush and Barack Obamatook similar actions.
In May 2006, President George W. Bush, in "Operation Jumpstart," ordered up to 6,000 National Guard troops to the states along the Mexican border to support the Border Patrol in controlling illegal immigration and related criminal activities on U.S. soil. On July 19, 2010, President Obama ordered an additional 1,200 Guard troops to the southern border. While this buildup was substantial and controversial, it did not require Obama to suspend the Posse Comitatus Act.
Under Article I of the Constitution, Congress may use the “militia” when necessary “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It also guarantees that the states will be protected against invasion or attempts to overthrow their “republican form of government,” and, when requested by the state legislature, against “domestic violence.” These constitutional provisions are reflected in the Insurrection Act of 1807 both before and after the passage of the Posse Comitatus Act. The Insurrection Act governs the president's ability to deploy troops within the U.S. to put down lawlessness, insurrection, and rebellion.
As now expressed by law at 10 U.S. Code § 252, the Insurrection Act is interpreted to mean: “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.”
The Posse Comitatus Act limits the Guard troops to acting only in support of the U.S. Border Patrol, and state and local law enforcement officers.
Posse Comitatus and Martial Law
The Posse Comitatus Act of 1878 prohibits the use of U.S. military forces to perform the tasks of civilian law enforcement such as arrest, apprehension, interrogation, and detention unless explicitly authorized by Congress.
The Posse Comitatus Act, signed into law by President Rutherford B. Hayes on June 18, 1878, limits the power of the federal government in the use of federal military personnel to enforce U.S. laws and domestic policies within the borders of the United States. The law was passed as an amendment to an army appropriation bill following the end of Reconstruction and was subsequently amended in 1956 and 1981.
As originally enacted in 1878, the Posse Comitatus Act applied only to the U.S. Army but was amended in 1956 to include the Air Force. In addition, the Department of the Navy has enacted regulations intended to apply the Posse Comitatus Act restrictions to the U.S. Navy and Marine Corps.
The Posse Comitatus Act does not apply to the Army National Guard and the Air National Guard when acting in a law enforcement capacity within its own state when ordered by the governor of that state or in an adjacent state if invited by that state’s governor.
Operating under the Department of Homeland Security, the U.S. Coast Guard is not covered by the Posse Comitatus Act. While the Coast Guard is an “armed service,” it also has both a maritime law enforcement mission and a federal regulatory agency mission.
The Posse Comitatus Act was originally enacted due to the feeling of many members of Congress at the time that President Abraham Lincoln had exceeded his authority during the Civil War by suspending habeas corpus and creating military courts with jurisdiction over civilians.
It should be noted that the Posse Comitatus Act greatly limits, but does not eliminate the power of the President of the United States to declare "martial law," the assumption of all civilian police powers by the military.
The president, under his or her constitutional powers to put down insurrection, rebellion, or invasion, may declare martial law when local law enforcement and court systems have ceased to function. For example, after the bombing of Pearl Harbor on December 7, 1941, President Roosevelt declared martial law in Hawaii at the request of the territorial governor.
What the National Guard Can Do on the Border
The Posse Comitatus Act and subsequent legislation specifically prohibit the use of the Army, Air Force, Navy and Marines to enforce the domestic laws of the United States except when expressly authorized by the Constitution or Congress. Since it enforces maritime safety, environmental and trade laws, the Coast Guard is exempt from the Posse Comitatus Act.
While Posse Comitatus does not specifically apply to the actions of the National Guard, National Guard regulations stipulate that its troops, unless authorized by Congress, are not to take part in typical law enforcement actions including arrests, searches of suspects or the public, or evidence handling.
What the National Guard Cannot Do on the Border
Operating within the limitations of the Posse Comitatus Act, and as acknowledged by the Obama administration, National Guard troops deployed to the Mexican Border States should, as directed by the states' governors, support the Border Patrol and state and local law enforcement agencies by providing surveillance, intelligence gathering, and reconnaissance support. In addition, the troops will assist with "counternarcotics enforcement" duties until additional Border Patrol agents are trained and in place. The Guard troops may also assist in the construction of roads, fences, surveillance towers and vehicle barriers necessary to prevent illegal border crossings.
Under the Defense Authorization Act for FY2007 (H.R. 5122), the Secretary of Defense, upon a request from the Secretary of Homeland Security, can also assist in preventing terrorists, drug traffickers, and illegal aliens from entering the United States.
Where Congress Stands On the Posse Comitatus Act
On Oct. 25, 2005, the House of Representatives and Senate enacted a joint resolution (H. CON. RES. 274) clarifying Congress' stance on the effect of the Posse Comitatus Act on the use of the military on U.S. soil. In part, the resolution states "by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or 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."
The Posse Comitatus Act Explained
The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law. This 143-year-old law embodies an American tradition that sees military interference in civilian affairs as a threat to both democracy and personal liberty. However, recent events have revealed dangerous gaps in the law’s coverage that Congress must address.
What does the term “posse comitatus” mean?
In British and American law, a posse comitatus is a group of people who are mobilized by the sheriff to suppress lawlessness in the county. In any classic Western film, when a lawman gathers a “posse” to pursue the outlaws, they are forming a posse comitatus. The Posse Comitatus Act is so named because one of the things it prohibits is using soldiers rather than civilians as a posse comitatus.
What are the origins of the Posse Comitatus Act?
The Posse Comitatus Act was passed in 1878, after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress. Through the law, Congress sought to ensure that the federal military would not be used to intervene in the establishment of Jim Crow in the former Confederacy.
Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value. It finds expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments, which were in part reactions to abuses committed by the British army against American colonists.
Today, the Posse Comitatus Act operates as an extension of these constitutional safeguards. Moreover, there are statutory exceptions to the law that allow the president to use the military to suppress genuine rebellions and to enforce federal civil rights laws.
What does the Posse Comitatus Act say?
The Posse Comitatus Act consists of just one sentence: “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.”
In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution.
Are all members of the military covered by the Posse Comitatus Act?
No, only federal military personnel are covered. While the Posse Comitatus Act refers only to the Army and Air Force, a different statute extends the same rule to the Navy and Marine Corps. The Coast Guard, though part of the federal armed forces, has express statutory authority to perform law enforcement and is not bound by the Posse Comitatus Act.
Members of the National Guard are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. That means they are free to participate in law enforcement if doing so is consistent with state law. However, when Guard personnel are called into federal service, or “federalized,” they become part of the federal armed forces, which means they are bound by the Posse Comitatus Act until they are returned to state control.
What are the main statutory exceptions to the Posse Comitatus Act?
There are many statutory exceptions to the Posse Comitatus Act, but the most important one is the Insurrection Act. Under this law, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.
What are the constitutional exceptions to the Posse Comitatus Act?
There are no constitutional exceptions to the Posse Comitatus Act. The law allows only for express exceptions, and no part of the Constitution expressly empowers the president to use the military to execute the law. This conclusion is consistent with the law’s legislative history, which suggests that its drafters chose to include the language about constitutional exceptions as part of a face-saving compromise, not because they believed any existed.
This has not stopped the Department of Defense from claiming that constitutional exceptions to the law exist. The Department has long claimed that the Constitution implicitly gives military commanders “emergency authority” to unilaterally use federal troops “to quell large-scale, unexpected civil disturbances” when doing so is “necessary” and prior authorization by the president is impossible. In the past, the department also claimed an inherent constitutional power to use the military to protect federal property and functions when local governments could not or would not do so. The validity of these claimed authorities has never been tested in court.
What are the weak points in the Posse Comitatus Act?
Events in 2020 and 2021 have highlighted two loopholes in the Posse Comitatus Act. The first involves the District of Columbia National Guard. Unlike all other state and territorial National Guards, the DC Guard is always under presidential control. Despite this, the Department of Justice has for years asserted that the DC Guard can operate in a non-federal, “militia” status, in which it is not covered by the Posse Comitatus Act. By this interpretation, presidents can use the DC Guard for law enforcement whenever they choose.
Another weakness in the Posse Comitatus Act arises from the law that allows the National Guard to operate in “Title 32 status.” In Title 32 status, a middle ground between purely state operations and federalization, Guard personnel are paid with federal funds and may perform missions requested by the president, but they remain under state command and control. That means they are not subject to the Posse Comitatus Act, even though they are serving federal interests.
How have these loopholes in the Posse Comitatus Act been exploited?
In the summer of 2020, President Trump deployed the DC National Guard into Washington to police mostly peaceful protests against law enforcement brutality and racism. Simultaneously, over the objections of DC’s mayor, the administration asked state governors to deploy their own Guard personnel into Washington in Title 32 status, and 11 governors did so. Although these out-of-state forces were nominally under their governors’ control, it was later revealed that they were reporting up through the DC Guard’s chain of command for “coordination” purposes. That meant they were ultimately taking orders from the president. In this way, the Trump administration brought a large, federally controlled military force into Washington and used it for civilian law enforcement, all while skipping over the procedures in the Insurrection Act and evading the political costs of invoking it. That is exactly what the Posse Comitatus Act is meant to prevent.
Moreover, the deployment of non-federalized, out-of-state Guard forces into a jurisdiction without its consent represents another threat to the Posse Comitatus Act. When operating in Title 32 status, Guard forces are exempt from the Posse Comitatus Act because they are under state command and control. A key part of that control is the governor’s right to decline a particular federal mission. That right is meaningless if the president can simply approach a different governor and ask her to deploy her state’s Guard into the unwilling governor’s state. In this scenario, the cooperating governor becomes a fig leaf for the president to use the military as a police force anywhere in the country, free from the constraints of the Posse Comitatus Act.
How should the Posse Comitatus Act be reformed?
Congress should pass three reforms to help close these loopholes in the Posse Comitatus Act. First, it should transfer control over the DC National Guard from the president to the mayor of Washington. The president would still be able to take command of the DC Guard when necessary by federalizing it, but it would then be subject to the Posse Comitatus Act, just like all other federally controlled military forces.
Second, Congress should clarify that governors may not send their National Guard forces into another state or territory without the latter jurisdiction’s consent. This will stop future presidents who want to use the military domestically, but do not want to follow the laws established by Congress, from going from governor to governor until they find one who is willing to do their dirty work.
Third, Congress should enact a law clarifying that the Posse Comitatus Act applies to National Guard forces whenever they report through a federal chain of command, regardless of whether they have officially been called into federal service. This will ensure that form is not elevated over substance and will more fully realize the principle behind the law."
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