Posse Comitatus Act and the US Military on the Border
by Robert Longley
Updated April 04, 2018
On April 3, 2018, President Donald Trump proposed the use of 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 Obama took 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.
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As originally enacted in 1878, the Posse Comitatus Act applied only to the U.S. Army but was amended in 1956 to include the Air Force.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 will, 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."
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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.
Clarifying the purpose of the seed:
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.
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 ?
How ironic.
T.Fargo posted 2 food articles today and the responses cut across the political spectrum quite nicely. No moderation necessary at all.