Separation of Federal and State Military Power

Posse Comitatus Act

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This article is about the Posse Comitatus Act in the United States.
　
The Posse Comitatus Act is the United States federal law (18 U.S.C. para 1385), original at 20 Stat. 152) that was passed on June 18, 1878, after the end of Reconstruction. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of local governments and law enforcement agencies in using federal military personnel to enforce the laws of the land. Contrary to popular belief, the Act does not prohibit members of the Army from exercising state law enforcement, police, or peace officer powers that maintain "law and order"; it simply requires that any authority to do so must exist with the United States Constitution or Act of Congress. In this way, most use of the Army and the Air Force at the direction of the President does not offend the statute, even though it may be problematic for political reasons.

The statute only addresses the US Army and, since 1956, the US Air Force. It does not refer to, and thus does not restrict or apply to, the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor (in its federal capacity, the National Guard forms part of the Army or Air Force of the United States). The Navy and Marine Corps are prohibited by a Department of Defense directive (self-regulation), but not by the Act itself.

Although it is a military force, the U.S. Coast Guard, which now operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.

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 by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the American Civil War (1861–1865).

The U.S. withdrew federal troops from 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 awarding 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, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal protection for Southern ex-slaves. 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. Many acts of violence, and a suppression of the vote of some political and racial groups, resulted in the election of state legislators and U.S. congressmen who halted and reversed political reform in the American South.


When the U.S. Representatives and Senators from the former Confederate states reached Washington, they set as a priority the creation of a statute prohibiting any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state.

An exception to Posse Comitatus Act derived from the Force Acts allowed President Eisenhower to send federal troops into Little Rock, Arkansas, during the 1958 school desegregation crisis. The Force Acts, among other powers, allow the President to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.

The original Posse Comitatus Act referred essentially to the United States Army. The Air Force was added in 1956 and the Navy and the Marine Corps have been included by a regulation of the Department of Defense. The United States Coast Guard is not included in the Act. (The U.S. Coast Guard was originally part of the Treasury Department, was later part of the Department of Transportation, and is now within the Department of Homeland Security.) This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement.
　

Legislation

The original provision was enacted as Section 15 of chapter 263, of the Acts of the 2nd session of the 45^th Congress.
　

Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment

The text of the relevant legislation is as follows:

18 U.S.C. para 1385. Use of Army and Air Force as posse comitatus

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

.

Also notable is the following provision within Title 10 of the United States Code (which concerns generally the organization and regulation of the armed forces and Department of Defense):

　

10 U.S.C. para 375. Restriction on direct participation by military personnel

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Recent Legislative Events
In 2006, the Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008).

On September 26, 2006, President Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition.

These changes were were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.

Section 1076 is titled "Use of the Armed Forces in major public emergencies." It provided that:

The President may employ the armed forces... to... restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act that in its original form was written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.

In 2012, U.S. President Barack Obama signed the 2012 Defense Authorization Act into law. Section 1031, clause "b", article 2 defines a 'covered person', i.e., someone possibly subject to martial law, as the following: "A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

http://en.wikipedia.org/wiki/Posse_Comitatus_Act