Posse Comitatus Act and the US Military on the Border

The Posse Comitatus Act was originally enacted due to the feeling of many members of Congress at the time that President Abraham Lincoln had exceeded his authority during the Civil War by suspending habeas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.

The Posse Comitatus Act was originally enacted due to the feeling of many members of Congress at the time that President Abraham Lincoln had exceeded his authority during the Civil War by suspending habeas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.

I don't think that part is actually the case.    It was really enacted due to white southern resentment about the presence of federal troops during reconstruction.    The south would have been better off today if those troops had remained until at least the 1960s.

Note that resentment of federal supremacy and civil rights for minorities is why one strain of Christian Dominionist / sovereign citizen groups adopted the name "Posse Comitatus".

I think that is also part of why the act passed, southern occupation , but another part was Lincolns suspension of habeus corpus , and the declaration of martial law in border states loyal to the union , places where the local authorities still had control over the day to day enforcement of laws and the populous , one of the prerequisites for instituting martial law is that local authorities have lost control of enforcing the law, Lincoln was even taken to the court and lost for those actions.

 kind of a perfect storm of both sides got screwed in their views , so legislation was proposed and passed so that it couldn't happen again.

So, how did previous president's do the same thing?  Seems like a lot of people are screaming Posse Comitatus, but don't really understand it.  President's Obama and Bush both used troops on the border.  In support of border operations, not as law enforcement against American Citizens is permissible.  The actual  law enofrcement (arrests) will be made by Border Patrol.  At least, that's my understanding.

They can only use National Guard ( with the Governors permission ) and only in a supporting role.

Posse Commitas came about after the Civil War to prevent Union troops from continuing to occupy the South.

The Act, § 15 of the appropriations bill for the Army for 1879, found at 20 Stat. 152, was a response to, and subsequent prohibition of, the military occupation of the former Confederate States by the United States Army during the twelve years of Reconstruction (1865–1877) following the American Civil War (1861–1865). The president withdrew federal troops from the Southern States as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election. Samuel J. Tilden of New York, the Democratic candidate, defeated Republican candidate Rutherford B. Hayes of Ohio in the popular vote. Tilden garnered 184 electoral votes to Hayes' 165; 20 disputed electoral votes remained uncounted. After a bitter fight, Congress struck a deal resolving the dispute and awarded the presidency to Hayes.

In return for Southern acquiescence regarding Hayes, Republicans agreed to support the withdrawal of federal troops from the former Confederate states, formally ending Reconstruction. Known as the Compromise of 1877, South Carolina, Florida and Louisiana agreed to certify Rutherford B. Hayes as the President in exchange for the removal of Federal troops from the South. ^[1]

The U.S. Constitution places primary responsibility for the holding of elections in the hands of the individual states. The maintenance of peace, conduct of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant of any state's role of exercising police power and maintaining law and order, whether part of a wider federation or a unitary state. During the local, state, and federal elections of 1874 and 1876 in the former Confederate states, all levels of government chose not to exercise their police powers to maintain law and order. ^[1] Some historians have concluded most Reconstruction governments did not have the power to suppress the violence.

When the U.S. Representatives and Senators from the former Confederate states reached Washington, they set as a priority legislation to prohibit any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state. By the 1878 election, Congress was dominated by the Democratic Party, and they passed the Posse Comitatus Act in 1878. en.wikipedia

Clarifying the purpose of the seed:

• Is the law relevant to our time:  should it be modified or should it no longer be a law?
• What are the dangers or benefits?
• Are there other actions more appropriate for the objective?

I think the main drawback to the Act today is that to some extent it restricts how much the federal government can help the states during natural disasters, ie things like hurricane Katrina which overwhelm local and state resources.

PJ,

What I get from this is that a BP agent needs to be there in order to make arrests or conduct searches while the National Guard troops are there to act as his/her muscle.  Since the more remote parts of the border can be fairly dangerous, it would not be good for a BP agent (or even a couple of them) to cover that area alone.  Traveling with a squad of NG troops acting as bodyguards would allow one agent to cover an area that would ordinarily require three or four, thus allowing the agents we have now to cover a wider area.  Also, the NG troops could handle some of the more technical details of surveillance, thus freeing up more BP agents.  That sounds like a good idea, and perfectly legal.

Additionally, if a President could use Police for his/her personal agenda, trying to use that force to control the national populace by arresting citizens (think 3rd Reich) and putting them in concentration camps.....another reason to have Posse Comitatus.  Defending the border against foreigners is another story altogether.

There seems to be this repeating narrative about NG troops can only be federalised withthe permission fo the Governor.  Not true.  The governor of Arkansas tried using Guard Troops to block the forced integration fo schools.  The President federalized them and had them turn around and protect the students-all of them.  Title 10 and/or Title 32 activation federalises these Guard Troops.

There seems to be this repeating narrative about NG troops can only be federalised withthe permission fo the Governor.  Not true.

Correct Gary but, if he did so without the consent of the State Governor, they would then count as  Federal troops and might be subject to the more stringent parts of the PC Act.  President Johnson didn't have that problem because he made it quite clear to Governor Wallace that, if he objected in any way, the next step would be to declare the State of Alabama to be in rebellion, with very unfortunate consequences for Alabama and for George Wallace.

Presidents have certainly activated National Guard units without permission from State Governors.  The most prominent case that I know of was when President Wilson activated NG units from all 48 States and used them to form an Army division to fight in WWI.  This division was called the All American Division; technically its designation was the 82nd Infantry Division (later became the 82nd Airborne Division during WWII).  That is why members of that division wear a patch on their sleeves with the letters AA on it (for All American).

Some years ago, I had occasion to talk with a young Sergeant in the 82nd.  Wanting to find out what they were teaching the kids these days, I asked him if he knew who the most famous soldier to serve in the 82nd was.  He thought that it might have been General Maxwell Taylor of WWII fame.  He was very surprised to find that the 82nd had once been an infantry outfit and that one of their soldiers in WWI was a young Corporal (later Sergeant) from Tennessee named Alvin York.

just some more info that also affects posse C. because posse c has been interpreted differently over time  and to some has been violated.

National Defense Authorization Act, 2012 which allows the Secretary of Defense to involuntarily activate any Reserve units or individuals under federal authority to provide assistance in responding to a presidentially declared disaster or emergency. A state governor must first request federal assistance, but need not consent to the activation of Reserve troops. The passage of this Act streamlined the process for the Reserve to mobilize in order to support local communities. The Act’s purpose was first realized in November 2012 when the Army Reserve activated three tactical water distribution units to affected areas in response to Hurricane Sandy. 

this act will also affect how Posse C. is used. But that is for the lawyers.

Thank you Mark.   I agree it's for the lawyers to interpret but I was also interested in hearing what NT members thought about it.  Anyhow......just trying to find a topic that wouldn't be viewed as partisan.   I don't think I succeeded so I turned to a cat on a roof story.  It's hard signing on and trying to participate on this site anymore.  hahahahaha

A non partisan topic? on NT? sorry but I'm chuckling like a loon in heat.

I posted this about 5 days ago on another seed , I think it fits here as well as food for thought.

when I first heard a couple weeks ago about trump stating he would use the military , first thing I thought was Posse C. Then I started thinking how would one go about getting around it. and in my thinking its not really that hard.
The last budget passed, had X amount slated for the supposed wall , far short of what was asked for, but the military got a huge windfall of an increased budget. Now consider I count the military as being the actual active duty component and all the components that make up the reserves, which include the NG.
Posse C , applies to all active military to include NG units under the command of the federal government , BUT and here is the big but , it does not apply to the NG if they are called to service by the state, meaning that the guard units are activated by the state . that is why it matters which regulation a guard unit is activated under , it dictates what those same units CAN , be used for , if its under feds , Posse C applies , if it is under the state , they can and have been used for things such as law enforcement .
We have 4 states on the southern border with a direct land bridge , one state we know will not activate their guard , one its a distinct possibility, the only thing stopping them, money, the other 2 , lets agree they are toss ups. That's where this new budget comes in .
Now here is a distinct possibility of a dangerous precedent , each and every military organization , on down to the base level has a unit specifically designated as "Civil engineering", their job is to build and maintain shit, and every year , they hold training exercizes in which that is exactly what they do to simulate different conditions, and at the end , it all gets torn down.
Most would assume , that the building of any wall , would go out to civilian contractors in the bid process, but what is stopping the government from , say changing the training exersize area to the southern border? Using materials already allotted in the construction of a barrier? and instead of tearing it down leaving it standing?
A good portion of the property this barrier would stand on already is in federal hands , its owned by the government , the parts that are not , is a mix between state owned , and private land, which can be handled on the fed and state level with simple sweeps of a pen and use of a phone in land swaps between state and feds , the private land , would need eminent domain to get involved .
There is actually nothing I can think of that would or could stop the military and the feds , from setting up the training exersizes on the southern border to train those units in civil engineering , and since they would be there ,to train , they would also be living up to Posse C.if they are active duty and federalized troops . and as I pointed out , the states can activate and get around Posse C within their states borders.
Just some info to think about. will it come to pass as I outlined? time will tell.

Thanks - I think you're on to something with respect to the wall and maybe some infrastructure.  I think that's where the Presidents comments regarding the DOD having lots of money in the coffers so some could be diverted. 

I didn't see where you posted your comment earlier but I've been traveling a LOT and haven't had much time to look at recent discussions.  I'll probably be dropping off again for a bit in another day.

Yeah, I guess a bi-partisan discussion was a little too much to ask for.  It's rather depressing these days.  

don't let the black dog get you down PJ , depression is a bad state of mind , speaking from  my own experience of course.

Don't stop trying though, Please ?

I posted this about 5 days ago on another seed , I think it fits here as well as food for thought.

How ironic.

T.Fargo posted 2 food articles today and the responses  cut across the political spectrum quite nicely.  No moderation necessary at all.