The Myth of the Posse Comitatus Act
I recently put forth a rudimentary plan for utilization of existing military resources in stanching the flow of illegal trespassers across our southern border with Mexico. Many were the commenters who were quick to tell me that such a thing is impossible because it is proscribed by the Posse Comitatus Act. This is one of those issues that naysayers like to throw up as roadblocks to any attempts to settle the problem of rampant illegal immigration. “We can’t use the military to patrol our borders because of the Posse Comitatus Act,” they protest breathlessly with a reverence for that act that hints of constitutional origins, and therefore, sacrosanct. Well hold on, all you legal buckaroos, while we take a closer look at this statutory critter that so many profess to know and understand and are even quicker to invoke. Here it is in all its sanctity:
Sec. 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.
Now that’s not really all that complicated, is it? What’s not to understand? The simple legislative act says that the federal government cannot use our military forces to execute or enforce laws. The law was originally enacted by a Republican Congress as a quid pro quo to Southern Democratic congressmen whose backing was needed to decide the presidential election of Rutherford B.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. Southerners were sick of the Union Army’s occupying forces’ interference in matters of local law and their representatives in Congress saw an opportunity for some horse trading. 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 civil and criminal statutes.
So the hallowed Posse Comitatus Act was really nothing more than a clever legislative gambit by southern congressmen to get the heavy boot of northern forces off the necks of their southern constituents, a rather ignominious birth for a minor piece of legislation that is now foolishly considered Holy Writ by too many of the uninformed.
But let’s get down to specifics; Congress, as always, covered its butt with the insertion of the weasel words:
“…except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,”
Thus, in an act of Congress requiring no more than fifty-two words, that august body let itself off future hooks with that excepting phrase. And do not delude yourself into believing that was by accident. Quite obviously, the lawmaking body of this country wanted to reserve unto itself the power to use federal forces in domestic crises. It would appear then that the Posse Comitatus Act says whatever the Congress says it does. And if that Congress determines that the massive incursions on our border from Mexico constitute an exceptional threat, there is nothing in the law to prevent this nation from defending that border with the military forces necessary to do so.