Robbins: Understanding the Posse Comitatus Act
Recently, the president declaimed that he would call out the troops which left a lot of jaws agape.
Squared up before a lectern in the Rose Garden, and declaring himself the “law and order” president, what he threatened in consideration of the George Floyd protests was that he was “dispatching thousands and thousands of heavily armed soldiers, military personnel and law enforcement officers to stop the rioting, looting, vandalism, assaults and the wanton destruction of property.”
Among other fallout, what the president’s perhaps ill-considered bloviating did was bring to the fore a bit of relative arcana; the Posse Comitatus Act which you may have since heard kicked around by pundits on both the left and right. Before we dig into the history and modern application of the act, let’s first define a few terms.
The word “posse” may invoke an image of guys in white hats on thundering steeds, Winchesters in their saddlebags, chasing down some evil scofflaw and, at least in part, the image is apt. “Posse,” from the Medieval Latin, means “power” or “force,” and derives from the same word as “potent.” It usually connotes a “force” or body of men (and, maybe, in more enlightened times, women). “Comitatus,” also from the Latin, means “country.” Taken together, then, “posse comitatus” means “the power or force of the country,” generally manifested as a force under arms.
Passed in 1878 as part of a military appropriations act, the Posse Comitatus Act provides, among other things, that it is unlawful to employ any part of the Army of the United States for the purpose of executing the laws, except in cases and under such circumstances as such employment may be expressly authorized by the Constitution or by an act of Congress. In other words, federal troops can’t be used willy-nilly to enforce the laws within the various states … unless the Constitution or an act of Congress so provides. This harkens back, of course, to the primary schism between federalism and state’s rights.
Although the original act referred only to the Army, the Air Force was added in 1956, and the Navy and the Marine Corps have since been signed up by a regulation of the Department of Defense. The act does not apply to the Coast Guard nor the National Guard while under the authority of the governor of the state.
In essence, the act defines the role of the United States Military in our lives and keeps us from becoming little more than an affluent and self-congratulatory banana republic. In simple terms, the act prohibits the American military from acting as a domestic police force.
By the way, none of this should be confused with the Posse Comitatus organization which, although somewhat somnambulant in recent years, is an avowed racist, white-supremacist group which has absconded with the name and made it their own. Other than the name, the act and the group have no association.
Following the Civil War, the Army had been used extensively throughout the South to maintain civil order, to enforce the policies of Reconstruction, and to ensure that any lingering vestiges of rebellion were thwarted. However, in accomplishing those goals, the Army increasingly became involved in traditional police roles and in enforcing the politically volatile and unpopular mandates of Reconstruction.
The stationing of federal troops at political events and polling places under the rubric of maintaining domestic order became of increasing concern to Congress, which felt that the Army was becoming politicized and straying from its original mission to defend our shores from outside threat.
The Posse Comitatus Act was passed to remove the Army from civilian law enforcement and to return it to its intended role.
Despite the noble lineage of the act, in truth it has been eroded over time, particularly since the early 1980s, starting first, with an exception allowing use of federal troops for drug interdiction at our borders. The 1995 bombing of the Murrah Federal Building in Oklahoma City led President Clinton to propose a further exception to the act to allow the military to aid civilian authorities in investigations involving “weapons of mass destruction.”
Further erosion of the act has taken place through the device of the various federal Civil Disturbance Statutes whose provisions permit the president to use military personnel to enforce civilian laws where the state has requested assistance or is unable to protect civil rights and property.
In the case of “civil disturbance,” the president must first give an order for the offenders to disperse. If the order is not obeyed, the president may then authorize military forces to make arrests and restore order. The scope of the Civil Disturbance Statutes is sufficiently broad to encompass civil disturbance resulting from terrorist or other criminal activity. It was these provisions that were relied upon to restore order using active-duty Army personnel following the Los Angeles Rodney King race riots of the early 1990s.
While the Act must evolve with modern times, the White House would do well to remember its origins and the innumerable tragic lessons of history which guided the Founding Fathers in delimiting the breadth and reach of military might and the tyranny that such might, unchecked, can usher in despite the best intentions to the contrary. That is why — from General Mattis to General Powell and others — there has been such stiff, outspoken pushback.
The military was intended to defend us not from ourselves and not from each other. To allow such “mission creep” absent deep and thoughtful deliberation may just thwart what the White House perceives as a disease and sacrifice the patient in the process.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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