How many actually understand the intent of the Posse Commitatus Act?

COL Randall C. — Sun, 15 Mar 2015 10:03:58 -0400

The Posse Comitatus Act is something that I've often seen referenced in discussions, but is often either incorrectly cited or incorrectly applied to the specific discussion. This is not unique to discussion forums as many of our elected officials are often confused about what is meant by the Act and what it has evolved to. This is understandable as the legal interpretation of the Act has evolved from the original intent of the Act to what it is interpreted as today, however many speak with authority in postings, articles, news reports, and so on.

The language of the Act has largely remained unchanged from the original passing in 1878 except for removing a limit on the fine as well as it not being applicable in Alaska. To be clear, the Posse Comitatus Act isn't some lengthy statute and is in fact one of the shortest ones in federal law - "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."

Instead of being a posting of "I'm right, you're wrong", I am curious to what your interpretation of the statute is and why. Do you understand what the origin of the Act was and what it's evolved to?

Response by SrA Matthew Knight made Mar 15 at 2015 10:15 AM

SrA Matthew Knight — Sun, 15 Mar 2015 10:15:31 -0400

Just based on the bit that I read on it, it seems that it's purpose is to prevent the active/reserve Army and Air Force from acting as law enforcement within the states. The exception of course is the National Guard which fall under state jurisdiction and can be used for said purpose as happened with Hurricane Katrina as well as the Ferguson fiasco.

That said, my interpretation is we can't be used by agencies to make arrests or enforce the laws against civilians off of U.S. Government installations.

I might be wrong in my interpretation but that's what I take from it.

Response by 1SG Private RallyPoint Member made Mar 15 at 2015 10:45 AM

1SG Private RallyPoint Member — Sun, 15 Mar 2015 10:45:22 -0400

Not quite any of the above. The last comes closest.

The language tells us, but the use of a Latin term still confuses the issue.

No one may use the Army or Air Force as a posse comitatus. It all hinges on what that term means.

Posse comitatus means, literally, the power of the county. This is the common law authority of sheriffs to temporarily order persons to assist in enforcing laws--assisting in searches and arrests being the usual according to the Hollywood and TV western.

Up to the time of the passage of the Posse Comitatus Act, any persons within the sheriff's jurisdiction were subject to such conscription, including federal troops. And in the South, during reconstruction, there were often several around.

There were several factors that went into the act's passage, but the most important was the contested Hayes-Tilden election. The law was originally enacted by a Republican Congress as a quid pro quo to Southern Democratic congressmen whose backing was needed to decide the presidential election of Rutherford B. Hayes. Republican supporters of Hayes agreed to the removal of federal troops from the occupied Southern states and sealed the deal with this brief bit of legislation that prohibited the use of federal troops for the purpose of enforcing local civil and criminal statutes.

Add to this, that the Army wasn't fond of the practice either. Their well trained, well armed, troops were natural choices for the sheriff needing help, but it often embroiled the troops in local controversy as well as confusing the chain of command.

A close reading shows that the act has no binding effect on federal use of federal troops--"except in cases and under circumstances expressly authorized by the Constitution or Act of Congress."

Response by SPC Private RallyPoint Member made Mar 15 at 2015 10:48 AM

SPC Private RallyPoint Member — Sun, 15 Mar 2015 10:48:09 -0400

I thought it was the first thing congress passed to end reconstruction after the southern states were readmitted.
I'm not sure how exactly it limits the use of the military. I know It's not a blanket prohibition like many think.
MacArthur used the army against world war I vets trying to collect pensions. Kennedy used the 101st to maintain order during desegregation and federalized the national guard.

Response by SSG Private RallyPoint Member made Mar 15 at 2015 2:28 PM

SSG Private RallyPoint Member — Sun, 15 Mar 2015 14:28:45 -0400

From an academic perspective, one of the biggest domestics concerns that "we" were worried about in the late 1800s was states' rights. That being said, the most probable explanation was to protect states' individual rights from the overreaching arms of the federal government. States were expected to (and passionately WANTED to!) provide their own protection, their own militia, their own police, their own laws, and more.

Notwithstanding the act's original intent, many laws go on to be misinterpreted, misused, and otherwise abused for the purposes of one person (or one group). Is it legal? Of course, just ask those who made it that way!

Response by CPT Aaron Kletzing made Mar 15 at 2015 7:45 PM

CPT Aaron Kletzing — Sun, 15 Mar 2015 19:45:48 -0400

COL Randall C. this is an awesome thread -- I didn't really know much about this. Really informative. Thanks for sharing!

Response by MAJ Private RallyPoint Member made Mar 15 at 2015 9:52 PM

MAJ Private RallyPoint Member — Sun, 15 Mar 2015 21:52:18 -0400

Sir,

I did a fair amount of research in one of my master's classes on the Posse Comitatus act. The original intent, as I understand it, was to prevent federal troops from being employed in a law enforcement role. There was concerns by citizens, commanders, and the President about the Army being pressed into law enforcement duties simply because it was the only federal entity on the frontier. At the time Sheriffs and other LEOs had the ability to go to the local Army post and round up Soldiers for their "posse," much to the fury of their commanders.

Posse Comitatus law does not prevent federal troops from being deployed CONUS, only in what capacities they can serve. As has already been mentioned, federal troops were deployed to address the aftermath of hurricane Katrina. The issues with Title 10 v. Title 32 in fact were one of the reasons why the federal response took as long as it did. I agree that the law is often cited and misrepresented in arguments. Until I had to study it, I admittedly had an incorrect understanding of it as well.

Response by COL Charles Williams made Mar 16 at 2015 12:07 AM

COL Charles Williams — Mon, 16 Mar 2015 00:07:07 -0400

Very good question... especially for us MPs. I believe it was intended to prevent the federal government and federal troops from enforcing or infringing on state laws and state's rights. I believe it is commonly referred to now, that the active duty military can't be used in a law enforcement role on US soil.