The Posse Comitatus Act: liberation from the lawyers

Parameters, Autumn, 2004 by Gary Felicetti, John Luce

"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."

--Posse Comitatus Act (1)

Much has been written about the Posse Comitatus Act. As a few others have noted, much of this commentary is "just plain nonsense." (2) The majority opinion, however, including that of the Department of Defense, maintains that this 19th-century law strictly limits almost all DOD participation in any activity related to "law enforcement" or "homeland security." (3) This fundamental mischaracterization, while understandable, is potentially dangerous to national security and has done nothing to protect civil liberties.

So how did a racist law from the bitter Reconstruction period morph, in many minds, into shorthand for the respected principle that Americans do not want a military national police force? In a nutshell: deliberate mischaracterization by the original supporters who hid behind patriotic language to strip the freed slaves of their nascent civil and voting rights; excessive focus on the false historical arguments as opposed to the law's actual text and ugly history; and some bad policy that misused a few key court decisions, and part of a statute, in a way that limited DOD efforts in the "war on drugs" at a time when Congress was pushing expanded participation.

This article introduces the actual history and meaning of the Posse Comitatus Act, distinguishing clearly between the law and a misleading DOD regulation that requires an army of lawyers to navigate. Despite what you've heard, the Posse Comitatus Act is not a significant impediment to DOD participation in law enforcement or homeland security.

The Act's Uninspiring Pedigree

General Acceptance of Army Participation in Law Enforcement (1787-1861)

While the nation's founders were deeply concerned with the abuses of the British army during the colonial period and military interference in civil affairs, the majority was even more concerned about a weak national government incapable of securing life, liberty, and property. Some vocal patriots sought to avoid a standing army and any federal control over the state militias; however, in the end, theirs was the minority view. The new Constitution did not contain the explicit limits and outright bans desired by some, even though the pro-Constitution Federalists explicitly argued that the standing army could assist in law enforcement efforts.

The framers even debated the federal government's power to call out the posse comitatus (literally meaning the power or authority of the county) and did not prohibit this established feature of the common law. Clearly, the Posse Comitatus Act did not originate from the prevailing opinion during the revolutionary period.

Legislative and executive actions in the early days of the American republic confirm that the use of federal troops or federalized militia to preserve domestic order, either as part of a posse comitatus or otherwise, was an accepted feature of American life under the new Constitution. In 1794, President Washington led federal troops into western Pennsylvania because unruly farmers refused to pay a whiskey excise tax. President Jefferson issued a broad proclamation that relied upon the Chief Executive's authority to call on the entire populace, military and civilian, to serve as a grand posse comitatus to counter Aaron Burr's planned expedition against Spanish territory. In 1832, President Jackson initially sent military forces toward South Carolina under a Jefferson-like posse comitatus theory to prevent secession. In an 1851 report to the Senate, President Fillmore stated that he had the inherent power to use regular troops to enforce the laws and that all citizens could be called into a posse by the marshal. The Senate Judiciary Committee agreed that marshals could summon both the militia and regular troops to serve in a posse comitatus.

In 1854, Attorney General Cushing formally documented the doctrine, concluding:

   The posse comitatus comprises every person in the district or county
   above the age of fifteen years whatever may be their occupation,
   whether civilians or not; and including the military of all
   denominations, militia, soldiers, marines. All of whom are alike
   bound to obey the commands of a sheriff or marshal. (4)

Ironically, the Cushing Doctrine, as the long-standing policy became known, was initially used as a basis for US marshals to enforce the Fugitive Slave Act in Northern states.

The Act's True Roots in the Civil War and Reconstruction Bitterness

The arrival of federal troops in the Southern states during the Civil War quickly undermined the slaveholders' authority, even before the Emancipation Proclamation. As the war ended, much of the former Confederacy was occupied by federal troops, including some of the 134,000 blacks in the federal Army. For some, the military occupation was worse than battlefield defeat. The presence of victorious Union troops, including former slaves, humiliated many former Confederates. Throughout the war, black Union troops flaunted their contempt for the symbols of slavery and relished the opportunity to exert authority over, and in some cases torment, Southern whites. Black soldiers acted, according to one New York newspaper, as "apostles of black equality," spreading radical ideas about black civil and political rights, which in turn inspired constant complaints from Southern whites. (5)