Posse Comitatus Act


The Posse Comitatus Act is a United States federal law signed on June 18, 1878, by President Rutherford B. Hayes which limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States. The Act was passed as an amendment to an army appropriation bill following the end of Reconstruction and was updated in 1956 and 1981.
The Act specifically applies only to the United States Army and, as amended in 1956, the United States Air Force. Although the Act does not explicitly mention the United States Navy and the United States Marine Corps, the Department of the Navy has prescribed regulations that are generally construed to give the Act force with respect to those services as well. The Act does not prevent the Army National Guard or the Air 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. The United States Coast Guard and United States Space Force are not covered by the Act either, primarily because although both are armed services, they also have maritime and space law enforcement missions respectively.
The title of the Act comes from the legal concept of posse comitatus, the authority under which a county sheriff, or other law officer, can conscript any able-bodied person to assist in keeping the peace.

History

The Act, § 15 of the appropriations bill for the Army for 1879 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 following the American Civil War.
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. However, in the former Confederate States, a number of paramilitary groups sought to suppress, often through intimidation and violence, African American political power and return the South to rule by the predominantly white Democratic Party. Although African Americans were supported at first by the federal government, as Reconstruction went on, that support waned. Following the bitterly disputed 1876 U.S. presidential election and Compromise of 1877, Congressmen and Senators from the former Confederate States returned to Washington and prioritized prohibiting the federal government from reimposing control over their states. After President Hayes used federal troops to end the Great Railroad Strike of 1877, there was sufficient bipartisan support to pass what became the Posse Comitatus Act.
The original Posse Comitatus Act referred exclusively to the United States Army. The Air Force, established during the 20th century initially as a branch of the Army, was added in 1956. The Navy and Marine Corps are not mentioned in the Act but are subject to the same restrictions by Department of Defense regulation. The United States Coast Guard and United States Space Force are not included in the act even though they are part of the six armed services as both are explicitly given federal law enforcement authority on maritime and space laws respectively. The modern Coast Guard did not exist at the time the Act became law in 1878. Its predecessor, the United States Revenue Cutter Service, was primarily a customs enforcement agency and part of the United States Department of the Treasury. In 1915, when the Revenue Cutter Service and the United States Lifesaving Service were amalgamated to form the Coast Guard, the service was both made a military branch and given federal law enforcement authority.
In the mid-20th century, the administration of President Dwight D. Eisenhower used an exception to the Posse Comitatus Act, derived from the Enforcement Acts, to send federal troops into Little Rock, Arkansas, during the 1957 school desegregation crisis. The Arkansas governor had opposed desegregation after the United States Supreme Court ruled in 1954 in the Brown v. Board of Education that segregated public schools were unconstitutional. The Enforcement Acts, among other powers, allowed the president to call up military forces when state authorities were either unable or unwilling to suppress violence that was in opposition to the citizens' constitutional rights.

Legislation

The original provision was enacted as Section 15 of chapter 263, of the Acts of the 2nd session of the 45th Congress.
The text of the relevant legislation is as follows:
Also notable is the following provision within Title 10 of the United States Code :

2006–07 suspension

In 2006, Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill. On September 26, 2006, President George W. 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 included in the John Warner National Defense Authorization Act for Fiscal Year 2007, 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:
In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act. It was originally written to limit presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.

Exclusions and limitations

There are a number of situations in which the Act does not apply. These include:
Although it is an armed service, the U.S. Coast Guard, which operates under the United States Department of Homeland Security during peacetime, is not restricted by the Posse Comitatus Act but has explicit authority to enforce federal law. This is true even when the Coast Guard is operating as a service within the United States Navy during wartime.
In December 1981, the Military Cooperation with Civilian Law Enforcement Agencies Act was enacted clarifying permissible military assistance to domestic law enforcement agencies and the Coast Guard, especially in combating drug smuggling into the United States. Posse Comitatus clarifications emphasize supportive and technical assistance while generally prohibiting direct participation of U.S. military personnel in law enforcement. For example, a U.S. Navy vessel may be used to track, follow, and stop a vessel suspected of drug smuggling, but Coast Guard Law Enforcement Detachments embarked aboard the Navy vessel would perform the actual boarding and, if needed, arrest the suspect vessel's crew.
On December 20, 2019, the National Defense Authorization Act for Fiscal Year 2020 authorized the creation of the United States Space Force, the sixth U.S. military branch under the United States Department of the Air Force. In February 2020, Air Force Majors Dustin L. Grant and Matthew J. Neil said in their paper The Case for Space: A Legislative Framework for an Independent United States Space Force that the Space Force was established independently to make enforcing U.S. space laws permissible, as such activity would be strictly prohibited under the Air Force branch regarding the Posse Comitatus Act.

Advisory and support roles

Federal troops have a long history of domestic roles, including occupying secessionist Southern states during Reconstruction and putting down major urban riots. The Posse Comitatus Act prohibits the use of active duty personnel to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to domestic law enforcement.
On March 10, 2009, members of the U.S. Army Military Police Corps from Fort Rucker were deployed to Samson, Alabama, in response to a murder spree. Samson officials confirmed that the soldiers assisted in traffic control and securing the crime scene. The governor of Alabama did not request military assistance nor did President Obama authorize their deployment. Subsequent investigation found that the Posse Comitatus Act was violated and several military members received "administrative actions".