# The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR42659 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** November 6, 2018 - **Citation:** R42659 ## Text The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law ,name redacted, Legislative Attorney Updated November 6, 2018 Congressional Research Service 7-.... www.crs.gov R42659 The Posse Comitatus Act and Related Matters Summary The Constitution permits Congress to authorize the use of the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” And it guarantees the states protection against invasion or usurpation of their “republican form of government,” and, upon the request of the state legislature, against “domestic violence.” These constitutional provisions are reflected in the Insurrection Acts, which have been invoked numerous times both before and after passage of the Posse Comitatus Act, 18 U.S.C. Section 1385, in 1878. Congress has also enacted a number of statutes that authorize the use of land and naval forces to execute their objective. The Posse Comitatus Act outlaws the willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an act of Congress. History supplies the grist for an argument that the Constitution prohibits military involvement in civilian affairs subject to only limited alterations by Congress or the President, but the courts do not appear to have ever accepted the argument unless violation of more explicit constitutional command could also be shown. The express statutory exceptions include the legislation that allows the President to use military force to suppress insurrection or to enforce federal authority, 10 U.S.C. Sections 251-255, and laws that permit the Department of Defense to provide federal, state and local police with information, equipment, and personnel, 10 U.S.C. §§ 271-284. Case law indicates that “execution of the law” in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks assigned to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government. Questions concerning the act’s application arise most often in the context of assistance to civilian police. At least in this context, the courts have held that, absent a recognized exception, the Posse Comitatus Act is violated when (1) civilian law enforcement officials make “direct active use” of military investigators; or (2) the use of the military “pervades the activities” of the civilian officials; or (3) the military is used so as to subject “citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.” The act is not violated when the Armed Forces conduct activities for a military purpose. The language of the act mentions only the Army and the Air Force, but it is applicable to the Navy and Marines by virtue of administrative action and commands of other laws. The law enforcement functions of the Coast Guard have been expressly authorized by act of Congress and consequently cannot be said to be contrary to the act. The act has been applied to the National Guard when it is in federal service, to civilian employees of the Armed Forces, and to off-duty military personnel. The act probably only applies within the geographical confines of the United States, but supplemental provisions of 10 U.S.C. §§ 271-284 appear to apply worldwide. Finally, the act is a criminal statute under which there has been but a handful of known prosecutions. Although violations will on rare occasions result in the exclusion of evidence, the dismissal of criminal charges, or a civil cause of action, as a practical matter compliance is ordinarily the result of military self-restraint. This report provides an historical analysis of the use of the Armed Forces to execute domestic law and of the Posse Comitatus Act, including their apparent theoretical and constitutional underpinnings. The report then outlines the current application of the act as well as its statutory exceptions, and reviews the consequences of its violation. This report appears in abridged form as CRS Report R42669, The Posse Comitatus Act and Related Matters: A Sketch. Congressional Research Service The Posse Comitatus Act and Related Matters Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 2 The Use of Federal Troops Prior to 1878 ........................................................................................ 5 The Insurrection Act and Other Statutes ................................................................................... 7 Resistance to Taxes and Duties ........................................................................................... 9 Neutrality Act Enforcement .............................................................................................. 10 Requests from States for Military Aid ............................................................................... 11 Trouble in the Western States and Territories ................................................................... 15 Slavery, the Civil War, and Reconstruction ...................................................................... 16 Use of Military Forces as a Posse Comitatus .......................................................................... 17 Passage of the Posse Comitatus Act .............................................................................................. 21 Constitutional Considerations ....................................................................................................... 23 Constitutional Origins ............................................................................................................. 23 Presidential vs. Congressional Powers .................................................................................... 26 Constitutional Exceptions ....................................................................................................... 28 When the Posse Comitatus Act Does Not Apply ........................................................................... 30 Statutory Exceptions ............................................................................................................... 31 Generally........................................................................................................................... 31 The Insurrection Acts ........................................................................................................ 34 Support to Law Enforcement ............................................................................................ 42 Military Purpose ...................................................................................................................... 49 Coverage of the Posse Comitatus Act ........................................................................................... 55 Willful Use .............................................................................................................................. 55 Execute the Law ...................................................................................................................... 56 Military Coverage ................................................................................................................... 59 Navy & Marines................................................................................................................ 59 Coast Guard ...................................................................................................................... 60 National Guard .................................................................................................................. 61 Off Duty Military, Acting as Citizens & Civilian Employees........................................... 62 Geographical Application........................................................................................................ 64 Consequences of Violation ............................................................................................................ 66 Prosecution .............................................................................................................................. 66 Exclusion of Evidence............................................................................................................. 66 Jurisdiction & Criminal Defenses ........................................................................................... 68 Civil Liability .......................................................................................................................... 69 Compliance.................................................................................................................................... 70 Contacts Author Contact Information .......................................................................................................... 70 Acknowledgments ......................................................................................................................... 70 Congressional Research Service The Posse Comitatus Act and Related Matters 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. 18 U.S.C. § 1385. Introduction Americans have a tradition, born in England and developed in the early years of our nation, that abhors military involvement in civilian affairs, at least under ordinary circumstances. It finds its most tangible expression in the 19th century Posse Comitatus Act, 18 U.S.C. Section 1385, which forbids use of the Army and (as amended) the Air Force to execute civil law except where expressly authorized. The exception documents a contrary component of the tradition. Congress has expressly approved the use of the Armed Forces in extraordinary circumstances or where federal manpower to enforce the law was seen as inadequate. Striking the balance between rule and exception has never been easy, but failure to do so has often proven unfortunate. If the rule is too unforgiving, a Shays’s Rebellion may go unchecked. If exceptions are too generously granted, a Boston Massacre or Kent State tragedy may follow. The terrorist attacks against the United States in September 2001 produced some calls for more generous exceptions to the rule.1 The USA PATRIOT Act2 broadened the permissible circumstances for the use of the military to assist law enforcement agencies in countering terrorism,3 but Congress also reaffirmed its determination to maintain the principle of the posse comitatus law.4 The perceived breakdown in civil law and order in Hurricane Katrina’s wake evoked more calls to reevaluate the military’s role in responding to disasters.5 The possibility of using military surveillance equipment and resources, including unmanned aerial vehicles (drones), to assist civilian law enforcement has raised some objections based on the military role.6 This report provides an historical analysis of the use of the Armed Forces to execute domestic law and of the Posse Comitatus Act, including their apparent theoretical and constitutional underpinnings. The report then outlines the current application of the Posse Comitatus Act as well as its statutory exceptions, and reviews the consequences of its violation. 1 See Nathan Canestaro, Homeland Defense: Another Nail in the Coffin for Posse Comitatus, 12 WASH. U. J.L. & POL’Y 99, 100 (2003) (“Some politicians and media sources now suggest that Congress amend or even repeal the PCA to allow a degree of domestic military involvement that would have been unthinkable five years ago.”). For a review of the changed role of the military, see William C. Banks, The Normalization of Homeland Security after September 11: The Role of the Military in Counterterrorism Preparedness and Response, 64 LA. L. REV. 745 (2004). 2 P.L. 107-56, 115 Stat. 272 (2001). 3 Id. § 104 (amending 18 U.S.C. § 2332e). 4 Homeland Security Act of 2002, P.L. 107-296, § 886, 116 Stat. 2248 (2002), codified at 6 U.S.C. § 466 (2018). 5 See Lisa Grow Sun, Disaster Mythology and the Law, 96 CORNELL L. REV. 1131 (2011); Jerald A. Sharum, The Politics of Fear and Outsourcing Emergency Powers: The Death and Rebirth of the Posse Comitatus Act, 37 LINCOLN L. REV. 111 (2009-2010);, William C. Banks, Providing “Supplemental Security”—The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J. NAT'L SECURITY L. & POL'Y 39 (2009) (all three articles recounting history behind the short-lived amendment to the Insurrection Act enacted in response to Hurricane Katrina). 6 Canestaro, supra, note 1, at 100 (arguing that numerous exceptions for military support of civil authorities “have taken their toll on the [Posse Comitatus Act’s] strength”). Congressional Research Service R42659 · VERSION 8 · UPDATED 1 The Posse Comitatus Act and Related Matters Background The Magna Carta provides the first recorded acknowledgment of the origins of the AngloAmerican tradition against military involvement in civilian affairs with its declaration that “no free man shall be ... imprisoned ... or in any other way destroyed ... except by the legal judgment of his peers or by the law of the land.”7 Subsequent legislation in the reign of Edward III explained that this precluded punishment by the King except “in due Manner ... or by Process made by Writ ... [or] by Course of the Law,”8 or as later more simply stated, except “by due Process of the Law.”9 Three hundred years after the passage of the Edwardian statutes, Lord Coke and other members of Parliament read these due process and law of the land requirements to include a broad prohibition against the use of martial law in peacetime, an interpretation they compelled King Charles I to acknowledge.10 King Charles I, preparing for a military expedition in France, had quartered his troops in homes along the southern English coastline.11 Rioting resulted, and the participants, both military and civilian, were tried and punished by commissioners operating under the authority of martial law. Offended by this peacetime exercise of military judicial authority over civilians, Parliament sought and was granted the Petition of Right of 1628, which outlawed both quartering and martial law commissions.12 7 Magna Carta, ch. 39 (1225)[ch.29 in the Charter of King John (1215)], reprinted in WILLIAM F. SWINDLER, MAGNA CARTA: LEGEND AND LEGACY 315-16 (1965) (“No freeman shall be taken, or imprisoned, or be disseised of any freehold, or liberties, or free customs, or outlawed, or banished, or in any other way destroyed, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land”) (language added to ch.29 of the Charter of King John in the reissuance by King Henry III appears in italics). Although the Magna Carta in the modified version of King Henry III remains in effect, the language quoted above is generally cited as “chapter 29.” See, e.g., FAITH THOMPSON, MAGNA CARTA: ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION 1300-1629, at 68 (1948); SIR MATTHEW HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 49 (1716 ed.); 1 SIR EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 45 (1797 ed.); I SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 400 (1765 ed.). 8 25 Ed. III. Stat. 5, ch. 4 (1352), reprinted in 1 STATUTES OF THE REALM, 1231-1377 321 (1993): Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land; It is accorded assented, and established, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law; nor that none be out of his Franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redressed and holden for none. 9 28 Ed. III. chs. 1, 3 (1354), reprinted in 1 STATUTES OF THE REALM, 1231-1377 at 345 (1993) (“the Great Charter ... [shall] be kept and maintained in all Points.... No Man of what[ever] Estate or Condition that he be, shall be put out of land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”). 10 See THOMPSON, supra note 7, at 347-50; David E. Engdahl, Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders, 57 IOWA L. REV.1, 10-11 (1971). Coke’s Institutes make the same point; proceedings under martial law are not proceedings under the “law of the land” (lex terrae). See I COKE, supra note 7, at 50 (“And so if two English men doe goe into a foreine kingdome, and fight there, and the one murder the other, lex terrae extendeth not hereunto, but this offense shall be heard, and determined before the constable, and marshall [i.e. at martial law], and such proceedings shall be there, by attaching of the body, and otherwise, as the law, and custom of that court have been allowed by the lawes of the realme, [13 H.IV. ch.5 (1412)]”). 11 For a more expansive examination, see Engdahl, supra note 10, at 22-23. 12 Restating the relevant guarantees of the Magna Carta and subsequent statutes, Parliament declared: Congressional Research Service R42659 · VERSION 8 · UPDATED 2 The Posse Comitatus Act and Related Matters When, in the following century, the British responded to colonial unrest by quartering troops in Boston, the colonists saw it as a breach of this fundamental promise of English law.13 Their circumstances, however, were not exactly identical to those surrounding the Petition of Right. First, the question arose in the British colonies rather than England itself. England had stationed troops in the colonies to protect them against the French and Indians and had opted for military governorships in other territories.14 Second, there was no military usurpation of judicial functions. The colonists remained subject to civil rather than military justice,15 and soldiers who employed [N]everthess of late time divers commissions under your Majesty’s great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.... They do therefore humbly pray your most excellent Majesty ... that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchise of the land. Petition of Right, 3 Car. I, c.1, §§ 3, 4, 7, 10, reprinted in WILLIAM STUBBS, SELECT CHARTERS AND OTHER ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL HISTORY FROM THE EARLIEST TIMES TO THE REIGN OF EDWARD THE FIRST 515-17 (8th ed. 1895); and 5 STATUTES OF THE REALM 23, 24 (1993). The Petition of Right was understood to have established, with respect to martial law, First, That in truth and reality it is not a law, but something indulged rather than allowed as a law; the necessity of government, order and discipline in an army, is that only which can give those laws a countenance. Secondly, This indulged law was only to extend to members of the army, or to those of the opposite army, and never was so much indulged as intended to be (executed or) exercised upon others; for others were not listed under the army, had no colour of reason to be bound by military constitutions, applicable only to the army; whereof they were not parts, but they were to be ordered and governed according to the laws to which they were subject, though it were a time of war. Thirdly, That the exercise of martial law, whereby any person should lose his life or member, or liberty, may not be permitted in time of peace, when the King’s courts are open for all persons to receive justice, according to the laws of the land. HALE, supra note 7, at 39-40. According to Blackstone, the necessity of order and discipline in an army is the only thing which can give ... countenance [to martial law]; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.... And it is laid down, that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any one by colour of martial law, this is murder; for it is against the magna carta. And the petition of right enacts, that no soldier shall be quartered on the subject without his own consent; and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights, that the raising or keeping of a standing army within the kingdom in time of peace, unless it be with the consent of the parliament, is against the law. I BLACKSTONE, supra note 7, at 400. 13 Engdahl, supra note 10, at 22. 14 Id. at 23 (explaining that Canada was governed by military rule from 1760-1763). 15 Id. at 24 (noting that Parliament had rejected military commissions to try civilians for offenses). Congressional Research Service R42659 · VERSION 8 · UPDATED 3 The Posse Comitatus Act and Related Matters more force than civilian law permitted were themselves subject to civilian justice as the trial of the soldiers involved in the Boston Massacre demonstrates.16 On the other hand, the troops involved in the Boston Massacre were stationed in Massachusetts not for protection against a marauding invader as they had been in the French and Indian Wars, nor to accomplish the transition between civil governments within a conquered territory as they had been after the French lost Canada to the British as a consequence of those conflicts, but as an independent military force quartered among a disgruntled civilian population to police it.17 Public resentment of the use of the troops in such a manner sparked the incident, which led in turn to further heightened resentment.18 In any event, the experience was sufficiently vexing that the Declaration of Independence listed among our grievances against Great Britain that the King had “kept among us, in times of peace, Standing Armies without the consent of our legislatures,” had “affected to render the Military independent of and superior to the civil power,” and had “quarter[ed] large bodies of armed troops among us ... protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these States.”19 The Articles of Confederation for the newly established United States addressed the threat of military intrusion into civilian affairs by demanding that the Armed Forces assembled during peacetime be no more numerous than absolutely necessary for the common defense; by entrusting control to civil authorities within the states; and by a preference for the farmer in arms as a member of the militia over the standing professional army.20 16 Id. at 25. 17 HILLER B. ZOBEL, THE BOSTON MASSACRE 135 (1987) (“The soldiers, one ought always to remember, went into Boston not as an occupying army but rather as a force of uniformed peace-keepers, or policemen. Their role as even the radicals conceived it was to assist the executive and if necessary the courts to maintain order.”). 18 See Engdahl, supra note 10, at 24-25: The last die was cast when two regiments of troops were quartered in Boston at the end of the decade. Boston was a hotbed of colonial discontent. The assemblage of military troops for control of possible disorders aggravated the discontent, not only because it affronted the English tradition against domestic use of military troops, but also because it was without warrant in the charter of Massachusetts Bay. The unwelcome troops were frequently taunted and vilified, and the ultimate and inevitable outrage soon occurred…. A crowd of angry Bostonians ... blocked the path of a detachment of soldiers marching to their post. The soldiers made ready to force their passage, but were ordered back to the main guard.... The crowd approached the main guard with angry and opprobrious taunts. A sentinel struck one particularly bothersome boy with the butt of his musket, and quickly a crowd converged on that spot throwing snowballs and rocks at the sentinel along with verbal threats on his life. The sentinel loaded his musket and waved it at the mob, a squad of soldiers were sent to his aid. The soldiers, soon joined by a colonel, loaded their muskets as the crowd hooted and jeered and berated them and dared them to shoot. They kept the crowd back a time with bayonets, but then suddenly fired. It was never made clear – it never is – whether they had fired on their officer’s order, or upon their own compulsion. In any event, five Americans lay dead and several others seriously wounded.... Members of a distrusted standing army, whose quartering was in violation of the Petition of Right, and whose preparation to militarily suppress possible civil disorder was inconsistent with the oldest of England’s own traditions, had slain English civilians in a time of peace. 19 This last charge presumably refers to the results of the murder trials of the officer and soldiers involved in the Boston Massacre. Two of the soldiers were convicted of manslaughter, branded on the hand and released; the officer and the other soldiers were acquitted. See ZOBEL, supra note 17, at 241-94. 20 See, e.g., ARTS. OF CONF. VI, VII, & IX. No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or Congressional Research Service R42659 · VERSION 8 · UPDATED 4 The Posse Comitatus Act and Related Matters The Constitution continued these themes, albeit with greater authority vested in the federal government. It provided that a civilian (the President) should be the Commander in Chief of the Army and Navy of the United States, and civilian authorities (Congress) should be solely empowered to raise and support Armies, provide and maintain a Navy, and make rules for their government and regulation.21 The Bill of Rights limited the quartering of troops in private homes,22 and noted that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”23 The Constitution, on the other hand, explicitly permitted Congress to provide for calling out the militia to execute the laws, suppress insurrection, and repel invasion.24 The Use of Federal Troops Prior to 1878 Notwithstanding the founders’ aversion to the use of a standing army to control the civilian populace, the Constitution nowhere explicitly prohibits it, and Congress lost no time in authorizing the President to call out the militia for the purposes permitted under the Constitution.25 Despite the retention of most police powers by the several states, Congress quickly established a law enforcement capability in the federal government in order to effectuate its constitutional powers and provide a means to enforce the process of federal courts.26 This authority was vested through the President in federal marshals, who were empowered to call upon its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for public use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.... When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.... The United States in Congress assembled shall never ... appoint a commander in chief of the army or navy, unless nine States assent to the same.... 21 U.S. CONST. art. II, § 2; art. I, § 8, cls. 12, 13, 14. The Constitution treats the militia similarly. The President is the Commander in Chief of the militia while it is in federal service, and Congress is empowered to approve its organization, arms and discipline, U.S. CONST. art. II, § 2; art. I, § 8, cl.16. 22 U.S. CONST. amend. III. 23 U.S. CONST. amend. II. 24 U.S. CONST. art. I, § 8, cl.15. Congress is further empowered to organize, arm, and discipline the militia, and to govern any part of militia in federal service, but the power to appoint officers and train the militias remains with the states. Id. cl. 16. 25 See Jay S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 GEO. WASH. L. REV. 1, 41-42 (1997) (describing the Militia Act of 1792, 1 Stat. 264). 26 Judiciary Act of 1789, Ch. 20, § 27, 1 Stat. 73, 87 (1789). Congressional Research Service R42659 · VERSION 8 · UPDATED 5 The Posse Comitatus Act and Related Matters the posse comitatus27 to assist them, an authority similar to that enjoyed by the sheriff at common law,28 and which was understood to include the authority to call for military assistance.29 Thus, the militia under federal control (and later the Armed Forces30) could operate either as an arm of the government or to support the federal marshal.31 These two roles of the military were similar in many respects, but, at least in theory, differed in one key aspect: troops serving as a posse comitatus remained subordinate to civil law enforcement authorities, while troops called up to suppress an insurrection or remove an obstruction to the execution of the laws supplanted civil authorities that had been rendered ineffective.32 In some cases, if the marshal feared he would be unable to control a disturbance even with the aid of a posse, or if local military commanders declined to give assistance, the marshal would try to persuade the President that an insurrection was underway.33 At other times, the President might order troops to quell what appeared to amount to an insurrection, yet limit the role of the Armed Forces to responding to the requests of the appropriate civil official, possibly dispensing with the need to issue the requisite proclamation under the Insurrection Act.34 In addition, Congress has from time to time enacted statutes authorizing federal troops to enforce specific proscriptions, sometimes in aid of civil authorities and sometimes (apparently) in their stead,35 and Presidents have issued proclamations exhorting all federal officials, civilian or military, to assist in arresting a particular conspiracy or uprising.36 It is not always easy to ascertain which statutory authority (if any) forms the basis for sending in federal troops. 27 The Latin phrase literally means attendants with the capacity to act from the words comes and posse meaning companions or attendants (comes) and to be able or capable (posse). Among the Romans comitatus referred to one who accompanied the proconsul to his province. Later, comes (sometimes referred to as comites or counts) meant the king’s companions or his most trusted attendants and comitatus came to refer to the districts or counties entrusted to their care. BOUVIER’S LAW DICTIONARY AND CONCISE ENCYCLOPEDIA 529, 2635 (1914). 28 At common law, the sheriff of every county was obligated “to defend his county against any of the king’s enemies when they come into the land; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is call the posse comitatus, or power of the county; which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprisonment.” 1 BLACKSTONE, supra note 7, at 332. 29 Canestaro, supra, note 1, at 110 (observing that Judiciary Act of 1789 supported the Mansfield doctrine, which held that federal marshals could employ military troops as a posse comitatus). 30 Engdahl, supra note 10, at 48-49 (describing how, after the Act of March 3, 1807, Ch. 39, 2 Stat. 443, permitted the use of the army wherever the militia could be employed to respond to domestic violence, “regular forces came increasingly to displace the militia as the principal instrument of arms in the nation, for marshals to employ regular military troops rather than militia as their posse comitatus”). 31 Id. at 47-48. 32 Id. at 50 (“[C]ommon were the cases in which soldiers were called to aid civil officials in dispersing mobs or suppressing riots precipitated by hotly contested elections or other public issues, or in other ways to assist the civilian officers. It was well understood that when they were used under such circumstances the soldiers were used not in their military character, but merely as civilian assistants subject to the command of the ordinary civil officers, and no more privileged in their use of force against citizens than the civil officers were themselves.”). 33 See infra “The Use of Federal Troops Prior to 1878.” 34 Id. 35 See infra, note 224 (listing examples). 36 For example, to counter the infamous Burr conspiracy in 1806, President Jefferson issued a proclamation “enjoin[ing] and requir[ing] all officers, civil and military, of the United States, or of any of the states or territories, and especially all governors and other executive authorities, all judges, justices and other officers of the peace, all military officers of the Army or Navy of the United States, or officers of the militia, to be vigilant, each within his respective department and according to his functions, in searching out and bringing to condign punishment all persons engaged in [a military expedition against Spanish territory], in seizing and detaining ... all vessels, arms military stores ... and in Congressional Research Service R42659 · VERSION 8 · UPDATED 6 The Posse Comitatus Act and Related Matters Presidents have relied upon the militia and Armed Forces with some frequency for riot control or when in extreme cases they felt it necessary to ensure the execution of federal law.37 The following sections provide an overview of the domestic employment of military forces and the statutes that govern such use. The Insurrection Act and Other Statutes Soon after Congress was first assembled under the Constitution, it authorized the President to call out the militia, initially to protect the frontier against “hostile incursions of the Indians,”38 and subsequently in cases of invasion, insurrection, or obstruction of the laws.39 Shortly thereafter, and echoing Article I, Section 8, cl. 15 and Article IV, Section 4 of the Constitution, Congress enacted the Calling Forth Act, authorizing the President to call out the militia in case of invasion or, at the request of a state legislature (or its governor, if the legislature could not be convened) in case of an insurrection within a state.40 Congress also empowered the President to call forth the militia, for a period of 30 days: general in preventing the carrying on such expedition or enterprise by all lawful means within their power....” FREDERICK T. WILSON, FEDERAL AID IN DOMESTIC DISTURBANCES, 1903-22, at 38, S. DOC. NO. 67-263 (1922) (hereinafter “S. DOC. NO. 67-263”). 37 Eighteenth and nineteenth century instances are collected, along with related proclamations and other documentation, in FREDERICK T. WILSON, FEDERAL AID IN DOMESTIC DISTURBANCES: 1787-1903, S. DOC. NO. 57-209 (1903); updated to include early 20th century incidents in U.S. ARMY JUDGE ADVOCATE GENERAL, FEDERAL AID IN DOMESTIC DISTURBANCES, 1903-22, S. DOC. NO. 67-263 (1922); see also BENNET MILTON RICH, PRESIDENTS AND CIVIL DISORDER (1941); CLAYTON D. LAURIE AND RONALD H. COLE, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS: 1877-1945 (1997); PAUL SCHEIPS, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS, 1945-1992 (2005). 38 1 Stat. 96 (1789); 1 Stat. 121 (1790). 39 Calling Forth Act of 1792, ch. 28, 1 Stat. 264 (repealed 1795); the Militia Act of 1795, ch. 36, 1 Stat. 424 (repealed in part 1861 and current version at 10 U.S.C. §§ 251-255). The constitutional and statutory authority to use military force in case of insurrection seems to have been in direct response to a perceived weakness in government under the Articles of Confederation. In 1787, a group of farmers in western Massachusetts, led by a Revolutionary War veteran named Daniel Shays and feeling oppressed by tax and creditor protection policies within the Commonwealth, had harassed the state courts and constabulary, and had attempted to storm the federal arsenal at Springfield before being repulsed by the militia. Some saw the insurrection as evidence of the need for a stronger central government and implicitly, confirmation that domestic tranquility might be more readily ensured if backed by centralized military capability. See SAMUEL ELIOTT MORISON, ET AL., I THE GROWTH OF THE AMERICAN REPUBLIC 242 (7th ed. 1980) (“Nevertheless, Shays’s Rebellion had a great influence on public opinion.... When Massachusetts appealed to the Confederation for help, [the Continental] Congress was unable to do a thing. That was the final argument to sway many Americans in favor of a stronger federal government”); CHRISTOPHER COLLIER & JAMES LINCOLN COLLIER, DECISION IN PHILADELPHIA: THE CONSTITUTIONAL CONVENTION OF 1787, at 13 (1986) (“To men like Madison and Washington, Shays’s Rebellion was an imperative. It hung like a shadow over the old Congress, and gave both impetus and urgency to the Constitutional Convention. It was the final, irrefutable piece of evidence that something had gone badly wrong. For some time these men had known that the deficiencies of the American government must be remedied. Shays’s Rebellion made it clear to them that it must be done now.”); CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787, at 10 (1966) (“Shays’s Rebellion had been in the public mind when Congress, after debating the Annapolis report, had voted in favor of a convention in Philadelphia.”). 40 Calling Forth Act of 1792, ch. 28, § 1, 1 Stat. 264 (repealed 1795 and current version now codified at 10 U.S.C. § 251 (2018)). It is unclear why Congress limited the ability of states to request assistance to circumstances of insurrection rather than “domestic violence” as permitted in Article IV, Section 4 of the Constitution. Perhaps “domestic violence” was interpreted to be restricted to violence of a sufficient magnitude to constitute an insurrection, or the word “insurrection” was meant to convey armed violence that did not amount to a rebellion or revolution seeking to overthrow the government in part or all of a state. See RICH, supra note 37, at 21 n. 1 (citing definition of insurrection as including resistance to government authority smaller in scope and purpose than those described by the terms “rebellion” and “revolution”).The guarantee of a “republican form of government” would seem to require federal Congressional Research Service R42659 · VERSION 8 · UPDATED 7 The Posse Comitatus Act and Related Matters whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge.41 In any of these events, the President was first required to issue a proclamation commanding the “insurgents” to disperse.42 President Washington used this authority to put down the Whiskey Rebellion in western Pennsylvania.43 Resistance to an excise tax on distilled whiskey led to violence against tax collectors; indictments of those perpetrating the violence went unanswered, and farmers eventually rose in rebellion against all efforts to enforce the federal law.44 The governor, having declined to call out the state militia to control the violence, the federal courts were left to call on the federal government for assistance.45 When the rioters failed to disperse on the President’s proclamation, some fifteen thousand militiamen from Pennsylvania and neighboring states quickly mobilized to restore the peace.46 After the Calling Forth Act expired two years later, Congress reenacted virtually the same language, except that a court finding was no longer necessary, and the proclamation to disperse did not have to occur prior to calling up the militia.47 It appears that the revised Calling Forth Act was understood to cover the use of the militia as an aid to civilian power or, in rare cases, as a means of temporarily supplanting local civilian authority.48 Both provisions of the Calling Forth Act were extended in 1807 to allow for the employment of the Army and Navy in domestic circumstances where the militia could be employed.49 Even before this change, President John Adams had used regular federal troops to put down, more by intimidation rather than the actual use of force,50 the 1799 Fries Rebellion in eastern Pennsylvania.51 The cavalry arrested the instigator of the resistance, John Fries, along with other intervention in the event of a rebellion against a state government even without its request. 41 Id. § 2 (repealed 1795 and current version now at 10 U.S.C. § 252 (2018)). 42 Id. § 3 (repealed 1795 and current version now at 10 U.S.C. § 254 (2018)). 43 See Presidential Proclamations of Aug. 7, 1794 and Sept. 25, 1794, 1 JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 158-62 (1896). For more information, see generally THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION (1986); STEVEN R. BOYD, THE WHISKEY REBELLION: PAST AND PRESENT PERSPECTIVES (1985). 44 MARLIN S. REICHLEY, FEDERAL MILITARY INTERVENTION IN CIVIL DISTURBANCES 57 (1939). 45 Id. at 58. 46 Id. (noting the militia were called out from Pennsylvania, Virginia, Maryland, and New Jersey). 47 The Militia Act of 1795, ch. 36, 1 Stat. 424 (repealed in part 1861). 48 See Engdahl, supra note 10, at 49-50 (noting that prior to the Civil War, military troops were more commonly employed to assist civil officers in the enforcement of civilian laws rather than as soldiers privileged to use force). 49 The Insurrection Act of 1807, ch. 39, 2 Stat. 443 provided that: in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect. 50 See RICH, supra note 37, at 25-26 (noting lack of resistance to armed troops, whose presence terrorized local inhabitants, partly due to the inability of the commanding general to maintain strict discipline among his troops). 51 Proclamation of March 12, 1799, reprinted in S. DOC. No. 67-263, supra note 36, at 35. Congressional Research Service R42659 · VERSION 8 · UPDATED 8 The Posse Comitatus Act and Related Matters participants, and turned them over to civil authorities to be tried for treason. Those convicted were eventually pardoned.52 Resistance to Taxes and Duties As in the Whiskey and Fries Rebellions, resistance to the laws of the United States during the early years of the republic had mainly to do with citizens’ objections to steadily increasing federal taxes, which were largely necessary to build up the military establishment,53 and other laws that tended to make themselves felt in citizens’ pocketbooks. In 1808, President Jefferson called out federal troops to suppress opposition to the Embargo Act54 by groups of traders in Vermont whose livelihood depended on imports and exports with Canada.55 Although President Jefferson followed the contemporary practice of turning to states’ governors to supply militia in support of revenue collectors, the state militia troops proved reluctant to enforce the law against their neighbors, so the President sent in a detachment of regular troops to restore order.56 Congress subsequently amended the Embargo Act specifically to authorize the use of troops to enforce the embargo.57 Resentment at the newly enacted authority to use federal military force to enforce ordinary laws in the absence of armed resistance led to a speedy demise of the embargo statute.58 In 1832, resistance to revenue laws again led to the prospect of using federal troops.59 Southerners objected to the system of protective tariffs that had been adopted in 1816 after the post-war resumption of trade threatened new domestic industries.60 Rather than gradually reducing the tariffs, as it had indicated was its intent, Congress steadily increased the tariff until by 1832 it became a policy fixture.61 Southerners believed that the money was raised unfairly at their expense and was expended mainly for the benefit of Northerners.62 The legislature of South Carolina voted to nullify the tariff and declared the state ready to meet force with force in the event the federal government sought to collect the tax.63 Congress passed a “Force Bill” to 52 Proclamation of May 21, 1800, reprinted in S. DOC. No. 67-263, supra note 36, at 36. 53 See RICH, supra note 37, at 21 (attributing need for increased revenue to pending war with France). 54 2 Stat. 451 (1807). 55 S. DOC. NO. 67-263, supra note 36, at 40-44. The federal marshal was to attempt to enforce the law with the use of the posse comitatus, and if that failed, the Secretary of War was to request the governor to issue a proclamation furnished by the President and then call on the state militia. Id. at 41. The President’s proclamation to disperse drew ire from the local population, which drew up their own memorial protesting the characterization of the situation as an “insurrection and rebellion.” RICH, supra note 37, at 32. When similar opposition to the embargo arose in New York, the President did not issue a proclamation, attempting instead to persuade the governor to take action, but promising to reimburse the state for its assistance in enforcing federal law. Id. at 33. 56 REICHLEY, supra note 44, at 64. 57 2 Stat. 506, 510 (1809) (also known as the “Force Bill”) (repealed). 58 See ROBERT W. COAKLEY, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS, 1789-1878, at 89 (1989). Congress replaced the Embargo Act with a new measure to interdict trade with Great Britain and France, 2 Stat. 528, which authorized military force to compel ships from those countries to depart U.S. ports but did not permit the use of federal or state military forces to prevent any illicit trade. 59 Id. at 96 (reporting that President Jackson faced the prospect of employing military force in a state that opposed enforcement of federal law). 60 See RICH, supra note 37, at 38-39. 61 Id. 62 See COAKLEY, supra note 58, at 95 (stating that Southerners, who sold cotton and other staples abroad but also imported heavily, found the measure discriminatory for protecting Northern interests, in their view amounting to an unconstitutional federal regulation of domestic industry). 63 RICH, supra note 37, at 38-39; ANDREW JACKSON, COPIES OF THE PROCLAMATION AND PROCEEDINGS IN RELATION TO Congressional Research Service R42659 · VERSION 8 · UPDATED 9 The Posse Comitatus Act and Related Matters authorize the President to use the Army and Navy to collect duties,64 but at the same time reduced the duties.65 South Carolina rescinded its nullification ordinance, bringing the confrontation to an end without the use of force (although, as a final defiant gesture, it issued a new ordinance to nullify the Force Bill).66 Neutrality Act Enforcement The early U.S. desire to avoid foreign entanglements of the sort that kept Europe in arms during the founders’ era manifested itself in a policy of neutrality which tended, at times, to conflict with the economic interests or political views of some part of the citizenry.67 Congress enacted a statute to prohibit the enlistment in or recruitment for foreign military service, the arming of foreign war vessels or privateers, and the dispatch of military expeditions against the territory of a state at peace with the United States.68 The statute also empowered the President to call upon the Armed Forces to detain or take possession of illicitly armed vessels and to prevent expeditions from departing U.S. territory.69 Even prior to its enactment, President Washington had called on state militias to deal with efforts of the French Ambassador to fit out privateers and military expeditions against British and Spanish interests.70 President Jefferson relied on this authority to counter Aaron Burr’s conspiracy in 180671 as well as other schemes to liberate Spain’s South SOUTH CAROLINA, S. DOC. NO. 22-30, at 38 (1833). 64 Act of March 2, 1833, ch. 57 § 1, 4 Stat. 632, (authorizing the President “to employ such part of the land or naval forces, or militia of the United States, as may be deemed necessary for the purpose of preventing the removal of such vessel or cargo…”); Id. § 5, 4. Stat. 634 (providing that “whenever the President of the United States shall be officially informed, by the authorities of any state … that, within the limits of such state, any law or laws of the United States, or the execution thereof, or of any process from the courts of the United States, is obstructed by the employment of military force, or by any other unlawful means, too great to be overcome by the ordinary course of judicial proceeding, or by the powers vested in the marshal by existing laws, it shall be lawful for him, the President of the United States, forthwith to issue his proclamation, declaring such fact or information, and requiring all such military and other force forthwith to disperse; and if … such opposition or obstruction shall be made … the President shall be … authorized, promptly to employ such means to suppress the same, and to cause the said laws or process to be duly executed, as are authorized and provided in the cases therein mentioned by the [Calling Forth Act]”). 65 Act of July 14, 1832, ch. 227, 4 Stat. 583, amended by Act of March 2, 1833, ch. 58, 4 Stat. 636 (reducing certain tariffs). 66 REICHLEY, supra note 44, at 67. 67 See generally CHARLES FENWICK, THE NEUTRALITY LAWS OF THE UNITED STATES 15-18 (1913) (describing political situation accompanying President Washington’s neutrality proclamation and early neutrality statutes). 68 Act of June 5, 1794, 1 Stat. 381, renewed, 1 Stat. 497 (March 2, 1797) and 2 Stat. 54 (April 24, 1800), repealed 3 Stat. 447, 450 (1818)). 69 Id. § 7, 1 Stat. 384. 70 See COAKLEY, supra note 58, at 25-26 (describing government circulars to governors requesting militia support to suppress neutrality violations). 71 See supra note 36; Thomas Jefferson, Message to Congress on the Burr Conspiracy, January 22, 1807, available online at The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=65721 (“Orders were dispatched to every interesting point on the Ohio and Mississippi from Pittsburg to New Orleans for the employment of such force either of the regulars or of the militia and of such proceedings also of the civil authorities as might enable them to seize on all the boats and stores provided for the enterprise, to arrest the persons concerned, and to suppress effectually the further progress of the enterprise.”); Thomas Jefferson, Sixth Annual Message, December 2, 1806, available online at The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=29448 (suggesting additional statutory authority for prevention of such expedition might be in order). The President’s desire to employ federal troops along with state militia led him to use the neutrality law rather than the Insurrection Act, although President believed the conspiracy amounted to an insurrection aimed at separating western territories from the United States. See COAKLEY, supra note 58, at 83. The Insurrection Act was thereafter amended to permit the use of regular troops as well as militia. Id. (citing 2 Stat. 443 (1807)), see supra note 49. Congressional Research Service R42659 · VERSION 8 · UPDATED 10 The Posse Comitatus Act and Related Matters American colonies.72 State militias employed for this purpose remained under the control of their respective governors.73 In 1836, at the time of Texas’s struggle for independence from Mexico, the Armed Forces were employed in an effort to prevent armed American sympathizers from crossing the border to join the fight74 in violation of the Neutrality Act of 1818,75 which expressly authorized the employment of the militia and Armed Forces in its enforcement. The next year, the Army was employed in a similar vein to quiet militant activity along the Canadian border.76 President Zachary Taylor issued a proclamation urging all officials, “civil and military,” to halt a planned expedition to attack Cuba,77 which resulted in the Navy dispatching vessels to New Orleans to prevent the expedition from departing.78 To block American sympathizers from aiding Cuban separatists during the Ten Years’ War and to halt Fenian expeditions against Canada, President Grant issued a proclamation in 1870 urging civil and military officers to take measures to prevent expeditions in violation of neutrality and to bring violators to justice.79 Requests from States for Military Aid Section 2 of the Calling Forth Act, authorizing the President to employ military force when the state made a proper application for assistance, lay dormant until the 1830s, when violence between contending groups of Irish laborers on the Chesapeake and Ohio Canal led Maryland’s legislature to request federal aid in 1834.80 President Jackson promptly endorsed the request to the Secretary of War and ordered “at least two companies of regulars” be sent to aid state civil 72 FENWICK, supra note 67, at 32-33 (describing Francesco de Miranda’s efforts to organize expeditions). Two Americans charged with violating the Neutrality Act in connection with the expedition attempted to set up a defense that their actions were undertaken on behalf of the U.S. government, but the judge refused to issue summons to various public officials, ruling that the actions were unlawful regardless whether they had been authorized by the President. Id. at 33 (citing United States v. Smith, 27 F. Cas. 1192, 1231 (C.C.D.N.Y. 1806)). The defendants were acquitted by a jury. Id. 73 S. DOC. NO. 67-263, supra note 36, at 39. 74 Id. at 49-50. 75 Neutrality Act of April 20, 1818, § 8, 3 Stat. 447, 449. Prior to enactment of the 1818 statute, the general practice entailed a presidential appeal to state governors for aid in arresting violators. See VII JOHN BASSET MOORE, DIGEST OF INTERNATIONAL LAW § 1321 (1906). After enactment of the 1818 Act, the President called on district attorneys and U.S. marshals or on states’ attorneys-general to assist in enforcement, see id., sometimes with the aid of military forces. 76 S. DOC. NO. 67-263, supra note 36, at 51-53. 77 V JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 7-8 (1897). 78 The first of the so-called filibuster expeditions led by Narciso Lopez was disbanded without force by the Navy and civil authorities in 1849. See Louis N. Feipel, The Navy and Filibustering in the Fifties, 44 U.S. NAVAL INST. PROC. 767, 769 (1918). A second expedition in 1851 evaded U.S. naval forces only to have two of its vessels captured by Spanish men-of-war, but the captured filibusterers were eventually released back to American forces after some diplomatic exchange. Id. at 1016, 1027. A third expedition managed to land in Cuba in 1851 but was not met with local enthusiasm according to plan and was defeated, ending in the trial and execution of the main instigators. Id. at 1027-29. The Fenian Brotherhood was an organization of Irish-Americans some 15,000 strong by 1863 whose object it was to secure the independence of Ireland from Great Britain. After the Civil War ended, a Fenian military convention determined to invade Canada, but the U.S. military intervened to seize a vessel laden with arms and ammunition, thus frustrating the planned expedition. S. DOC. NO. 67-263, supra note 36, at 94. 79 Proclamation of Oct. 12, 1870, 16 Stat. 1136; FENWICK, supra note 67, at 52 (stating object of proclamation). 80 See COAKLEY, supra note 58, at 105. Congressional Research Service R42659 · VERSION 8 · UPDATED 11 The Posse Comitatus Act and Related Matters authorities, without, however, issuing a proclamation to the laborers to disperse.81 The presence of federal troops helped to stabilize the situation without requiring any actual use of force.82 A second request was occasioned in 1838, when both parties to the Pennsylvania state election claimed victory and set about to establish majority control of the state House. When public reaction turned violent, the governor called out the militia and requested aid from the local military commander, who denied the request.83 The governor then appealed to President Van Buren for federal assistance under the Domestic Violence Clause of the Constitution.84 Despite that clause’s guarantee of protection, President Van Buren took the position that his duty was discretionary, and believing the domestic violence was not of a character that the “State authorities, civil and military ... have proved inadequate to suppress it,” he declined to authorize assistance.85 In the meantime, however, the commanding general of the U.S. arsenal at Frankford brought men and ordnance in response to the governor’s request.86 The “Buckshot War” ended without armed confrontation, but the commander was reprimanded by the War Department for acting without authorization.87 A more serious state of affairs was reached in Rhode Island in 1842, where dissatisfaction with the government under the state’s charter, still that granted by King Charles II in 1663, led to efforts to draft a new constitution.88 Two separate conventions were established, resulting in two separate sets of government officials claiming legitimate authority.89 The governor under the charter declared martial law and requested the President provide federal troops to stop the feared violence, but President Tyler declared he had no power to anticipate insurrections.90 Three subsequent similar requests were similarly denied.91 By the time the President had decided that intervention might be necessary to prevent the opposition army (led by contending Governor Thomas Dorr) from using force, the Secretary of War had determined that Dorr’s men had dispersed, and the already-prepared proclamation would not be necessary.92 The “Dorr Rebellion” had ended without a clash of arms.93 It did, however, produce a seminal Supreme Court decision, Luther v. Borden.94 In Luther, among other things, the Court established that whether a state enjoys a republican form of government guaranteed by the Constitution was a political matter for Congress to decide.95 Moreover, the Court indicated that Congress having 81 Id. 82 Id. at 105-06. 83 RICH, supra note 37, at 53. 84 COAKLEY, supra note 58, at 108. 85 RICH, supra note 37, at 53-54. 86 COAKLEY, supra note 58, at 109. 87 RICH, supra note 37, at 53; COAKLEY, supra note 58, at 109 (recounting that the Secretary of War laid down the general rule, that “[i]n doubtful cases where the seat of government is near the theater of the disturbance, the necessity must be very urgent and palpable to justify an officer commanding a detached post in marching his forces to repress an insurrection without authority to do so from this department”). 88 S. DOC. NO. 67-263, supra note 36, at 53-54. 89 Id. at 54. 90 Id. 91 Id. at 55-56. 92 Id. at 57. 93 Id. (quoting President Tyler’s message to Congress). 94 Luther v. Borden, 48 U.S. 1 (1849). 95 Id. at 42 (“Under [Art. IV § 4] of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily Congressional Research Service R42659 · VERSION 8 · UPDATED 12 The Posse Comitatus Act and Related Matters delegated to the President its prerogative to call forth the militia in cases of domestic violence, it is up to the President to determine the exigency of responding to a call from a state for military intervention to put down a claimed insurrection.96 In either case, the Court determined the judiciary has no role to play.97 After the Civil War, labor disputes led to numerous requests for federal troops to suppress violence.98 In 1877, in response to strikes and related violence that erupted after railroads cut the pay of their workers by 10%, federal troops were requested by the governors of Pennsylvania,99 West Virginia,100 Maryland,101 Illinois,102 and Missouri, Indiana,103 Wisconsin, California, and Kentucky,104 with varying degrees of conformity to the requirements of the Insurrection Act, as interpreted by President Hayes.105 Although Ohio’s governor did not request federal troops to quell strike-related violence in Toledo, Cincinnati, and other places, local officials appealed for assistance from nearby military commanders.106 No direct help was given, although supplies of arms from Rock Island Arsenal were made available to the state.107 It has been suggested that federal authority might have been asserted on the basis of the protection of a federal function (i.e., the delivery of the mail), but either due to an understanding that federal assistance to enforce state law was constitutionally unavailable without the request of the state government, or due to the lack of available federal troops, the President made no effort to do so.108 decide what government is established in the State before it can determine whether it is republican or not…. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.”). 96 Id. at 43 (“[T]he power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act.”). 97 Id. at 42-43. 98 See JERRY M. COOPER, THE ARMY AND CIVIL DISORDER 1 (1980) (reporting on the rise of trade unions after the Civil War and stating that by 1877 “industrial conflict was a permanent part of the American scene”). 99 RICH, supra note 37, at 74-75. Pennsylvania militia sent to suppress a riot in Pittsburgh instead inflamed the situation and were forced to withdraw, leaving the city in anarchy. Id. 100 The insurrection involved striking railroad workers, who seized control of the railroad in Martinsburg, WV. See RICH, supra note 37, at 73. The President sent federal troops, instructing their commanders not to act until his proclamation to disperse had been published. See S. DOC. NO. 67-263, supra note 36, at 163; 20 Stat. 803-04 (proclamation). 101 A confrontation between militia and strike sympathizers in Baltimore, which resulted in 10 deaths, was the impetus for sending in troops. See RICH, supra note 37, at 74; 20 Stat. 804 (proclamation). 102 The Illinois governor requested assistance in the proper form, and President Hayes promptly promised to supply it, but apparently not wanting to issue a proclamation, gave orders that troops were to be used to protect government property and enforce the orders of federal courts. See RICH, supra note 37, at 80. 103 S. DOC. NO. 67-273, supra note 36, at 171-72. 104 See RICH, supra note 37, at 80-81. The disturbance in California resulted from resentment against Chinese immigrants. 105 See id. at 78 (listing the President’s criteria for a formal request, which consisted of a certification that (1) disorder existed; (2) state authorities were incapable of preserving the peace; (3) the legislature was not in session; (4) the legislature could not be convened in time to meet the emergency; and (5) the appeal to the President was to protect the state against domestic violence). 106 See S. DOC. NO. 67-263, supra note 36, at 170 (reporting that General Hancock determined that such assistance was not authorized, the governor not having requested it, unless troops were formally summoned by the sheriff as a posse comitatus). 107 Id. 108 See RICH, supra note 37, at 82-83. Congressional Research Service R42659 · VERSION 8 · UPDATED 13 The Posse Comitatus Act and Related Matters Questions regarding the federal versus state control of troops arose during the 1877 riots.109 In West Virginia and Maryland, federal troops were placed under the command of the governors to be employed alongside state troops.110 In Indiana, where the governor’s request was initially turned down for lack of compliance under the Constitution and Insurrection Act,111 federal troops were to be furnished on the request of the federal marshal as a posse comitatus and were not turned over to the governor.112 When disorder spread to Pennsylvania, federal troops were initially sent in to protect federal property, the governor’s first request for assistance having apparently been deemed deficient.113 After the deficiencies were corrected and a proclamation was issued, the general officer in charge of federal troops requested clarification as to the disposition of federal troops114 and espoused the doctrine that whenever a state government asks for assistance under the Insurrection Act, federal military power should supplant local civil authority: When the governor of a State has declared his inability to suppress an insurrection and has called upon the President of the United States under the Constitution to do so, that from that time commences a state not of peace but of war, and that although civil local authority still exists, yet the only outcome is to resort to force through the Federal military authorities, and that can only be through a subordination of the State authorities for the time being and until lawful order is restored; otherwise there can be no complete exercise of power in a military way within the limits of the State by the Federal officers.115 The doctrine appears to have gained the approval of President Hayes, at least insofar as it had to do with command of state troops, although a telegram advising the commander to in effect federalize state troops arrived too late to be carried into effect.116 The proposed equation of insurrection to war calling for the substitution of military force for ordinary methods of law enforcement seems to have found its way into later War Department manuals regarding the military role in civil disturbances.117 109 See COOPER, supra note 98, at 62-64. 110 Id. at 62. 111 S. DOC. NO. 67-273, supra note 36, at 171-72. Although no proclamation under the Insurrection Act was issued, President Hayes ordered that officers in charge were to command insurgents to disperse prior to taking any action. Id. at 172. 112 Id. at 173 113 See RICH, supra note 37, at 78. 114 Telegram from Major-General Hancock to Adjutant-General of the Army, July 24, 1877, reprinted in S. DOC. NO. 67-263, supra note 36, at 275. 115 Telegram from Major-General Hancock to Secretary of War George W. McCrary, July 24, 1877, reprinted in S. DOC. NO. 67-263, supra note 36, at 275, 276. 116 See RICH, supra note 37, at 76-77. 117 See, e.g., War Department Document No. 882, Office of the Adjutant General, Military Protection The Use of Organized Bodies in the Protection and Defense of Property During Riots, Strikes, and Civil Disturbances 63 (1919) (stating that “federal troops can not take orders from civil authorities” and that “a degree of martial law actually exists whenever Federal troops go on duty” for the purpose of riot duty, even where martial law has not been declared); see also A Comprehensive Study of the Use of Military Troops in Civil Disorders with Proposals for Legislative Reform, 43 U. COLO. L. REV. 399, 410 (1972) (arguing that the use of military after the Civil War led to erosion of notion that military troops used to execute laws were ordinarily subordinate to civil authority). This phenomenon may have been more pronounced at the state level. See Henry Winthrop Ballantine, Unconstitutional Claims of Military Authority, 5 J. AM. INST. CRIM. L. & CRIMINOLOGY 718 (1915) (reporting instances of military intervention in labor disputes, mostly by state militias). Congressional Research Service R42659 · VERSION 8 · UPDATED 14 The Posse Comitatus Act and Related Matters Trouble in the Western States and Territories U.S. troops were sent to deal with disputes in western territories and new states on several occasions. In California, the failure of the governor to request assistance under the Insurrection Act led to a denial of military assistance.118 The California Gold Rush was marked by a heightened tendency toward lawlessness, which was for a time brought under relative control by vigilantes.119 The self-appointed Vigilance Committee of San Francisco, which had been allowed to operate separately from federal and local law enforcement authorities, refused to surrender a prisoner to the federal court under a writ of habeas corpus.120 The governor called out the militia to put down the insurrection, and, having received a less than enthusiastic response, requested assistance from the Army, and when that was refused, from the President.121 The Attorney General advised the President that the situation was not sufficiently dire to require federal intervention,122 and noted that during the month of turmoil said to require armed intervention, no effort had been made to convene the legislature.123 When the Vigilante Committee took another prisoner, a judge of the California Supreme Court, the state governor again requested assistance from the military, this time from the commander of a ship in the harbor.124 Again, the request was turned down. The senior naval commander in San Francisco, stressing the constitutional requirements for requesting aid from the federal government to put down domestic violence, instructed the ship’s captain that there was to be no interference in the domestic troubles of the state.125 The territory of Utah was the site of considerable resistance to federal law after it was established in 1850, and Brigham Young, the head of the Church of Jesus Christ of Latter-day Saints, appointed its governor.126 Most white inhabitants of Utah were also members of the Church and tended to regard laws not emanating from the governor to be invalid, eventually compelling nearly all federal officials to leave the territory for their own safety.127 In 1857, the President appointed a new governor, and federal Armed Forces were sent in to ensure a peaceful transfer of power.128 Governor Young responded by declaring martial law and forbidding any Armed Forces from entering the territory.129 It was not until April 1858 that President Buchanan issued a proclamation offering amnesty to those who would obey the law and promising to prosecute those who did not.130 The proclamation was not styled as an order to disperse, and troops were instructed to act in aid of the execution of civil power.131 118 S. DOC. NO. 67-263, supra note 36, at 74. 119 Id. at 71. 120 Id. at 74-77. 121 Id. at 74. 122 Id. at 72-76, 247. 123 Id. at 249. 124 S. DOC. NO. 67-263, supra note 36, at 76. 125 Id. at 77. 126 Id. at 78. 127 Id. at 78 (citing H.R. EX. DOC. NO. 25, 32d Cong., 2d sess.). 128 Id. (federal forces were originally to act as posse comitatus to aid newly appointed civilian government). 129 Id. at 79. 130 Proclamation of April 6, 1858, 11 Stat. 796. 131 Id., 11 Stat. at 797 (reporting that the President had ordered a “detachment of the army to march for the City of Salt Lake … and to act in case of need as a posse for the enforcement of the laws”). Congressional Research Service R42659 · VERSION 8 · UPDATED 15 The Posse Comitatus Act and Related Matters Slavery, the Civil War, and Reconstruction In 1831, federal troops were sent out on several occasions to respond to reports of slave insurrections, initially in New Orleans and later in Virginia, Maryland, Delaware, and the Carolinas.132 These actions appear to have been undertaken by the local military commandants in response to requests from local officials, and do not appear to have been justified by any statute or presidential proclamation.133 During troubles related to the slavery issue in Kansas in 1856, President Pierce issued a proclamation commanding persons involved in unlawful combinations to disperse.134 In the following months, the new governor sent frequent requests to the commandants at Ft. Leavenworth and Ft. Riley for troops to disband a territorial militia that had formed in Lawrence.135 When Kansas’s pending entry into the Union in 1858 again brought tensions to a head, the governor called upon the commander of U.S. troops for troops to act “as a posse comitatus in aid of the civil authorities.”136 There does not appear to have been another proclamation under the Insurrection Act, and since only the federal marshal and his deputies were empowered to request the assistance of the military as a posse comitatus, there was no statutory basis for this action. Rather, it appears to have been an exercise of the newly emerging theory known as the Cushing Doctrine, explained below, under which members of the Armed Forces could act as a posse comitatus to enforce the law without invoking the Insurrection Act or other law that permitted the use of the Armed Forces. At the dawn of the secessionist movement that led to the Civil War, President Buchanan declined to send troops into seceding states, apparently based on his perception that any troops dispatched to execute the laws of the Union would necessarily be subordinate to civil authorities.137 He informed Congress that because federal law enforcement and judicial machinery in those areas had already been demolished, his duty to execute the law could not be accomplished even with the aid of military troops.138 On coming into office, President Lincoln took a very different view, at times using federal military power without subordination to civil authority even in loyal Union states.139 Congress also enacted a new provision to replace § 2 of the Calling Forth Act, adding “rebellions” to instances for which the use of the Armed Forces was envisioned and to change the standard from a situation in which a combination or obstruction to law enforcement was “too powerful to be suppressed by the ordinary course of judicial proceedings” to one in which the unlawful obstruction or assemblage “make[s] it impracticable to enforce the laws ... by the ordinary course of judicial proceedings.”140 The successful suppression of the rebellion did not put an end to violence in the South. The Reconstruction period after the Civil War was characterized by constant political turbulence in the South.141 Efforts to establish new governments in former Confederate states were particularly 132 S. DOC. NO. 67-263, supra note 36, at 45-46, related documents at 223-25. 133 Id. 134 11 Stat. 791 (1856). 135 S. DOC. NO. 67-263, supra note 36, at 69-71. 136 Id. at 71. 137 See Engdahl, supra note 10, at 53. 138 See id. 139 Id. at 53-54. The Supreme Court declared such use of the military in loyal states to be unconstitutional. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 140 Act of July 29, 1861, 12 Stat. 281. See Engdahl, supra note 10, at 55-56 (describing changes). 141 See Gary Felicetti and John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief Congressional Research Service R42659 · VERSION 8 · UPDATED 16 The Posse Comitatus Act and Related Matters contentious during the decade following the Civil War, and Presidents received more requests for military aid from state governors during these years than all previous decades combined, sometimes receiving simultaneous requests from two rival governors claiming legitimacy in the same state after an election.142 Resistance to efforts to achieve equal status for newly freed slaves led Congress to pass the Civil Rights Act of 1871 (also called the “Ku Klux Klan Act”),143 which among other things added a new insurrection provision permitting the President to employ the land and naval forces to enforce civil rights. This authority was used immediately after enactment when President Grant issued a proclamation calling attention to the new law and declaring himself ready to invoke it if necessary.144 This was followed several months later by a proclamation under the new act commanding conspirators in nine counties in South Carolina to disperse within five days and turn in their firearms, ammunition, and disguises to the local marshals or military officers,145 and shortly thereafter by a proclamation suspending habeas corpus, as permitted under Section 4 of the act.146 Hundreds of suspected Klansmen were arrested over the following months and tried in federal court.147 Use of Military Forces as a Posse Comitatus Even though Congress had since 1792 empowered the President to call out the state militia to overcome obstructions to law enforcement and it had also provided authority in a number of statutes for the President to employ the land and naval forces for certain law enforcement purposes, it appears to have been understood that federal law enforcement officials could themselves call on local military commanders for assistance without involving the President.148 Congress had vested the federal equivalent of the sheriff, the federal marshal, with the power to call forth the posse comitatus in performance of his duties.149 The federal marshals and their deputies were thus implicitly empowered to compel the assistance of members of the Armed Forces when force became necessary to execute the process of federal courts, but the military and Misunderstanding Before Any More Damage Is Done, 175 MIL. L. REV. 86, 100-09 (2003) (describing “counterreconstruction” efforts and widespread racial terrorism); S. DOC. NO. 67-263, supra note 36, chapters V – VIII (describing employment of military during Reconstruction period and post-Reconstruction political disturbances during the years between 1866 and 1876). 142 See COAKLEY, supra note 58, at 341. 143 17 Stat. 13 (1871) (current version codified at 10 U.S.C. § 253). 144 17 Stat. 949 (1871). A previous proclamation under the existing authority to assist states South Carolina in putting down domestic violence on application of the governor did not bring about the desired result, 16 Stat. 1138 (March 24, 1871). 145 17 Stat. 950 (1871). 146 17 Stat. 951 (1871). 147 S. DOC. NO. 67-263, supra note 36, at 103. 148 Felicetti & Luce, supra note 141, at 95 (“The framers clearly were aware of the posse comitatus and the use of the military in some forms of law enforcement, yet they did not prohibit the practice.”). 149 See, e.g., 1 Stat. 87 (1789) (“a marshal shall be appointed in and for each district ... whose duty it shall be ... to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have the power to command all necessary assistance in the execution of his duty....”); Calling Forth Act, § 9, 1 Stat. 265 (1792) (“the marshals of the several districts and their deputies shall have the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states”). Congressional Research Service R42659 · VERSION 8 · UPDATED 17 The Posse Comitatus Act and Related Matters units serving on a posse were to remain subordinate to the marshal and could not initiate legal proceedings.150 In some cases when it passed a particular statute, Congress specifically authorized recourse to the posse comitatus for its enforcement. The Fugitive Slave Act151 was such a law, and its use led to the crystallization of the government’s doctrine regarding the use of the military in the role of a posse.152 Under that act, owners whose slaves had escaped to another state were entitled to an arrest warrant for the slaves and to have the warrant executed by the federal marshals. The marshals in turn might “summon and call to their aid the bystanders, or posse comitatus of the proper county ... [and] all good citizens [were] commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required, as aforesaid, for that purpose.”153 The act did not specifically authorize the use of the military or militia in its execution, but when particularly fierce opposition arose in Boston in 1851, the President issued a proclamation requiring “all officers and persons, civil and military to aid and assist by all means in their power in quelling [such] combinations.... ”154 The Secretary of War sent orders to Army units to be ready to respond to the call of a marshal or deputy, or the certification of a federal judge stating that military force would likely be necessary.155 Troops in Boston Harbor were made ready to intervene in the event of a riot, but such intervention was unnecessary.156 When asked by the Senate whether sufficient authority for vigorous enforcement of the Fugitive Slave Act was available, President Fillmore advanced the doctrine that his use of the Army and Navy to enforce federal law was an inherent power, suggesting that it ought not be construed as restricted by the Insurrection Act’s requirements, in particular that of issuing a proclamation to disperse.157 He also made the argument that all citizens, whether enrolled in any military service or not, may be summoned as a posse comitatus, while conceding doubt as to whether an organized military force acting under military command might be employed in such a manner.158 The Senate Judiciary Committee declared that it saw no reason to consider military members exempt from duty to serve as a posse comitatus, whether as individuals or organized under their ordinary command structure.159 150 See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 866 (1920). 151 Act of Feb. 12, 1793, Respecting fugitives from justice, and persons escaping from the service of their masters, 1 Stat. 302, as amended by 9 Stat. 462 (1850). 152 Laws permitting the President to use military forces to execute particular laws were apparently understood to place the forces so employed under the direction of civil authorities. See, e.g., Neutrality Act of April 30, 1818, § 8-9, 3 Stat. 447, 449 (authorizing President or his designee to employ militia or land or naval forces to detain certain vessels, prevent military expeditions, and compel departure of foreign ships). In 1849, President Taylor used this authority to call upon “every officer in the military, civil or military, to use all efforts in his power to arrest for trial and punishment every such offenders of [neutrality laws, with respect to an expedition to invade Cuba],” V JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 7-8 (1907). 153 9 Stat. at 463. 154 S. DOC. NO. 67-263, supra note 36, at 62; 9 Stat. 1006 (President Millard Fillmore’s proclamation urging all officers, civil and military, to assist in enforcement of the Fugitive Slave Act in 1851). 155 S. DOC. NO. 67-263, supra note 36, at 62. 156 See COAKLEY, supra note 58, at 133. 157 Id. at 130 (citing VI JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 2637-46 (1897)). He further suggested that the requirement to issue a proclamation in connection with calling forth the militia should be dispensed with in cases where such a proclamation might defeat the purpose of the law to be executed by alerting persons whose arrest was sought. 158 Id. 159 Id.; S. REP. NO. 31-320 (1851). The Committee suggested that statutory authority to call forth the military or the Congressional Research Service R42659 · VERSION 8 · UPDATED 18 The Posse Comitatus Act and Related Matters In June of 1851, a federal marshal in Chicago arrested a fugitive slave on a warrant issued under the act.160 He called for the assistance of members of the police force and of the state militia to prevent abolitionists from rescuing the prisoner before he could be returned to his owner.161 The marshal subsequently filed a claim with the Department of the Treasury for reimbursement of the funds he had paid the members of the police force and the militia who responded to his call.162 Attorney General Caleb Cushing was asked whether the United States was obligated to honor the claim.163 While this question remained pending, another incident in Boston arose in response to the arrest of fugitive slave Anthony Burns in 1854.164 Two batteries of artillery and a detachment of federal troops were sent into the city while the governor also called up the local militia,165 but when additional forces were requested, military commanders considered further authorization from Washington to be necessary before complying with the requests.166 The Attorney General took the opportunity, ostensibly in response to the earlier request, to announce a new doctrine regarding the employment of the Armed Forces.167 Cushing’s response went well beyond the question of whether the “bystanders” contemplated by the Fugitive Slave Act might include members of a state militia when not in federal service, and announced a broader principle—members of the military by virtue of their duties as citizens were part of the posse comitatus. Apparently adopting the views expressed earlier by the Senate Judiciary Committee in reaction to the previous Administration’s views on the matter, Cushing declared: The posse comitatus comprises every person in the district or county above the age of fifteen years, whatever may be their occupation, whether civilians or not; and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of the sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus. (xxi Parl. Hist., p.672, 688, per Lord Mansfield).168 regular military forces to enforce due execution of the laws would be rarely used, only after civil power (with the aid of military units as a posse comitatus) were to prove inadequate. Id. at 1. 160 6 Op. Att’y Gen. 466, 466 (1854). 161 Id. 162 Id. 163 Id. 164 S. DOC. NO. 67-263, supra note 36, at 63. 165 Id. at 64. 166 Id. at 63-65 (recounting the “Anthony Burns” riots and a similar incident that occurred in Racine, Wisconsin in 1854). 167 See COAKLEY, supra note 58, at 133-137 (reporting that Cushing’s opinion was drafted in the midst of widespread resistance in Boston to the rendition of Anthony Burns, which became the occasion for the largest military posse comitatus ever assembled, albeit not under the effective direction of the marshal). 168 6 Op. Att’y Gen. 466, 473 (1854). Cushing’s citation to Lord Mansfield is apparently a reference to the remarks of the English Chief Justice during debate in the House of Lords concerning the validity of use troops to quell rioters in London: Lord Mansfield ... went on: ‘....[I]t appears most clearly to me, that every man may legally interfere to suppress a riot, much more to prevent acts of felony, treason, and rebellion, in his private capacity, but he is bound to do it as an act of duty; and if called upon by a magistrate, is punishable in case of refusal.... A private man, if he sees a person committing an unlawful act, ... may apprehend the offender, and ... may use force to compel him, not to submit to him, but to the law. What a private man may do, a magistrate or peace officer may clearly undertake; and according to the necessity of the case ... , any number of men assembled or called together for the purpose are justified to perform. This doctrine I take to be clear and indisputable, with all the possible Congressional Research Service R42659 · VERSION 8 · UPDATED 19 The Posse Comitatus Act and Related Matters Two years later, Cushing’s opinion supplied the justification for the use of federal troops at the call of civil law enforcement authorities in what some saw as partisan involvement in the conflict between pro- and anti-slavery forces in Kansas.169 Congress reacted with a rider to an Army appropriations bill forbidding the use of any “part of the military forces of the United States to enforce territorial law in Kansas.”170 After some discussion of whether the amendment was germane, it was defeated. consequences which can flow from it, and to be the true foundation for calling in of the military power to assist in quelling the late riots. The persons who assisted in the suppression of those riots and tumults, in contemplation of law, are to be considered as mere private individuals, acting according to law, and upon any abuse of the legal power with which they are invested, are amendable to the laws of their country. ... On the whole, my lords, while I ... sincerely lament the cause which rendered it indispensably necessary to call out the military to assist in the suppression of the late disturbances, I am clearly of the opinion, that no steps have been taken which were not strictly legal, as well as fully justifiable in point of policy.... The military have been called in, ... not as soldiers, but as citizens: no matter whether their coats be red or brown, they have been called in aid of the laws, not to subvert them, or overturn the constitution, but to preserve both.” XXI HANSARD, THE PARLIAMENTARY HISTORY OF ENGLAND FROM THE EARLIEST PERIOD TO THE YEAR 1803, at 690-98 (June 19, 1780). Cushing seemed to turn Lord Mansfield’s point on its head when he wrote that, “the fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character.” English law prohibited martial law, the use of military force domestically, in peacetime England. Lord Mansfield justified an apparent breach of the martial law proscription by asserting that the soldiers had acted as individuals called, commanded, and governed exclusively by the dictates of law applicable to civilians. Civilians are not organized as military units and are not subject to the command of military officers. Lord Mansfield’s justification could only hold as long as the soldiers were not organized as military bodies and were not acting under the command of their officers. The fact that they were organized as military bodies, under the immediate command of their own officers, was the critical determinant of their legal character. 169 President Pierce told Congress: The Constitution requiring [the Executive] to take care that the laws of the United States be faithfully executed, if they be opposed in the Territory of Kansas he may, and should, place at the disposal of the marshal any public force of the United States which happens to be within the jurisdiction, to be used as a portion of the posse comitatus ; and if that do not suffice to maintain order, then he may call forth the militia of one or more States for that object, or employ for the same object any part of the land or naval force of the United States. So, also, if the obstruction be to the laws of the Territory, and it be duly presented to him as a case of insurrection, he may employ for its suppression the militia of any State or the land or naval force of the United States. V JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 358 (1897); see also EDWARD CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, 155 (5th ed. 1984) (calling Cushing’s opinion an ingenious means of virtually eliminating the proclamation requirement under the Insurrection Act by enabling marshals to summon both state militia and U.S. regular forces within their precincts to assist in enforcing the law, noting President Pierce’s use of new doctrine to declare it his duty to place U.S. forces in Kansas at the disposal of marshal). 170 By the proposed legislation, would Congress would have given itself final authority to select which of the contending governments to recognize: But Congress hereby disapproving the code of alleged laws officially communicated to them by the President, and which are represented to have been enacted by a body claiming to be the Territorial Legislature of Kansas; and also disapproving of the manner in which said alleged laws have been enforced by the authorities of said Territory, expressly declare that, until those alleged laws shall have been affirmed by the Senate and House of Representatives as having been enacted by a legal Legislature, chosen in conformity with the organic law, by the people of Kansas, no part of the military force of the United States shall be employed in aid of their enforcement, nor shall any citizen of Kansas be required, under those provisions to act as a part of the posse comitatus of any officer acting as a marshal or sheriff in said Territory. CONG. GLOBE 34th Cong., 1st & 2d Sess. 1813 (1856). Congressional Research Service R42659 · VERSION 8 · UPDATED 20 The Posse Comitatus Act and Related Matters Passage of the Posse Comitatus Act Following the Civil War, the use of federal troops to execute the laws, particularly in the states that had been part of the Confederacy, continued even after all other political restrictions had been lifted. By 1877, there was evidence that Republican state governments in more than one southern state owed their continued political existence to the presence of the military and that the activities of federal troops may have influenced the outcome of the Hayes-Tilden presidential election.171 The House of Representatives, controlled by a Democratic majority, passed an Army appropriation bill which expressly prohibited use of the Army to shore up Republican state governments in the South, or more precisely, to shore up either side of the political dispute in Louisiana or anywhere else.172 The Senate, controlled by a Republican majority, refused to accept the provision. No compromise could be reached, and the session ended without passage of an Army appropriation bill. Money to pay the Army was subsequently appropriated in a special session,173 without reference to restrictions on use of the Army.174 But when the issue of Army appropriations next arose, the House included a posse comitatus section.175 The Senate accepted the House version with minor amendments.176 171 Members of the two political parties understandably disagreed as to whether the presence of federal troops in the South tainted or insured the integrity of the political process; compare, “[O]ur Army, degraded from its high position of the defenders of the country from foreign and domestic foes, has been used as a police; has taken possession of polls and controlled elections; has been sent with fixed bayonets into the halls of State Legislatures in time of peace and under the pretense of threatened outbreak; has been placed under the control of subordinate State officials, and, under the instructions of the Attorney General, has been notified to obey the orders of deputy United States marshals, ‘general and special,’ appointed in swarms to do dirty work in a presidential campaign,” 5 CONG. REC. 2117 (remarks of Rep. Banning), with, “Nor do I think, sir, that the use of troops in the States recently in rebellion was uncalled for or inconsistent with the spirit of republican liberty. If they were recalled before every man, white and black, was safe – safe and truly free, with all his civil rights in their fullest extent – they were recalled too soon.” 7 CONG. REC. 3616 (remarks of Rep. Philips). 172 Section 5 of H.R. 4691, as passed by the House, provided, “That no part of the money appropriated by this act, nor any money heretofore appropriated, shall be applied to the pay, subsistence, or transportation of troops used, employed, or to be used or employed, in support of the claim[s of various individuals and bodies purporting to comprise the valid government of Louisiana]; nor in the aid of the execution of any process in the hands of the United States marshal in said State issued in aid of and for the support of any such claims. Nor shall the Army, or any portion of it, be used in support of the claims, or pretended claim or claims, of any State government, or officer thereof, in any State, until the same shall have been duly recognized by Congress. Any person offending against any of the provisions of this act shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned at hard labor for not less than five years or more than ten years.” 5 CONG. REC. 2119 (1877). 173 See Presidential Proclamation of May 5, 1877, 20 Stat. 803 (1877) (calling Congress into session). 174 The bill contained no posse comitatus provisions because the President had withdrawn federal troops from Louisiana and South Carolina and because of concern over disturbances on the Mexican border and over Indian uprisings. 6 CONG. REC. 287 (remarks of Rep. Atkins) (1877). 175 “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 under the pretext or for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said forces may be expressly authorized 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 violating the provisions of the this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $10,000 or imprisonment not exceeding two years, or both such fine and imprisonment.” 7 CONG. REC. 3845 (1878). 176 The “pretext” language was stricken because it was thought to be “in the nature of a reflection upon the past administration of the Government.” 7 CONG. REC. 4648 (remarks of Sen. Sargent). Instances of express Constitutional authority were added to the statutory exception, although then as now the precise effect of this change was a matter of dispute; the penalty was applicable only to willful violations, although a Senate requirement that the penalty be restricted to willful and knowing violations was not accepted. Id. Congressional Research Service R42659 · VERSION 8 · UPDATED 21 The Posse Comitatus Act and Related Matters At least one contemporary military jurist viewed the new law as having less than a momentous impact on the relationship between civil and military authorities.177 Colonel William Winthrop opined that, the occasion for its enactment having passed, the act remained “a mere impediment to the constitutional exercise of the executive power of the nation.”178 While federal marshals could no longer avail themselves of military assistance to arrest individuals charged with offenses against the United States, he stressed that wherever a combination existed to resist the enforcement of the laws, the President always could invoke the Insurrection Act.179 He further made note of the already sizable list of exceptions to the prohibition.180 Others have viewed the act as having a deleterious effect on the nation’s commitment to civilian law enforcement. While soldiers serving on a posse remained subordinate to civilian rules and law enforcement officers, troops called out under the Insurrection Act came to be viewed as an independent military force enforcing something like martial law, if not engaging in all-out war.181 Today, however, the act is widely regarded as the embodiment of the American tradition of antimilitarism.182 Despite early efforts on the part of the executive branch to get the provision repealed or amended,183 the Posse Comitatus Act has remained essentially unchanged since its passage.184 177 See WINTHROP, supra note 150, at 867. 178 Id. 179 See id. 180 Id. 181 See Engdahl, supra note 10, at 62-64 (“By the end of the [19th] century it had become thoroughly established in the common understanding that wherever and whenever military troops were employed, it was equivalent to war.”). 182 Cf Felicetti & Luce, supra note 141, at 91 (arguing that “courts analyzing the Act [have written] about the law as if it was the only law or principle that limited the use of the armed forces in a law enforcement role. Some, therefore, have claimed to discern a broader policy or ‘spirit’ behind the Act that is not supported by the historical record or the statute’s text. While these wider policies are sound, they are embodied in federalism, the law concerning federal arrest authority, election law, and especially fiscal law. The ... Posse Comitatus Act ... doesn’t have to do all the work, a view that even the Act’s original proponents appeared to recognize. Trying to force-fit all these other principles into the surviving part of the Act has only created a need to ‘discover’ a number of implied exceptions and has sowed a great deal of confusion.”); C.J. Williams, An Argument for Putting the Posse Comitatus Act to Rest, 85 MISS. L.J. 99, 164-65 (2016) (“As a symbolic expression of the traditional American value of maintaining civilian control of the military, the Posse Comitatus Act fails. The Act imposes criminal sanctions on civilian authorities that use the military to enforce laws, rather than limit criminal sanctions to military authorities that usurp civilian control. As a practical tool to effectuate lofty means of maintaining a separation between the military and civilian law enforcement, it likewise fails. Its vague language has caused nothing but confusion and motivated Congress to enact so many exceptions to the Act that it has long since been swallowed.”). 183 See Rutherford B. Hayes, Second Annual Message to Congress, 8 CONG. REC. 5 (1878) (noting recommendation of the Secretary of War that the provision be repealed or amended); 1 Annual Report of the Secretary of War for 1878, at VI-VII (advising repeal of posse comitatus provision or expansion of exceptions to permit employment of the Army to counter lawlessness in Arizona territory); see also Chester A. Arthur, First Annual Message to Congress, 13 CONG. REC. 28 (1881) (advising an exception permitting the military to assist the civil Territorial authorities in enforcing the laws of the United States); Chester A. Arthur, Special Message, 13 CONG. REC. 3355 (1882) (same). Congress declined to exempt the territories at that time, apparently due to the belief that sufficient authority existed in insurrection statutes to permit military intervention to execute federal law, albeit under presidential authority rather than that of the federal marshal. See 13 CONG. REC. 3457-58 (1882) (statement by Senator Edmunds, reporting conclusion of the Senate Judiciary Committee). In 1900, however, Congress enacted an exemption for the District of Alaska, Act of June 6, 1900, 31 Stat. 330. 184 For some time the act was contained in Title 10 of the United States Code and expressly exempted the territory of Alaska, 10 U.S.C. § 15 (1940 ed.). When Title 10 was recodified and the section transferred to Title 18, the Air Force, previously covered while it was part of the Army, was expressly added to the act, and the reference to Alaska, by then a state, disappeared. 70A Stat. 626 (1956). Over the years, Congress has adjusted the impact of the Posse Comitatus Act by enlarging the number of statutes which Congressional Research Service R42659 · VERSION 8 · UPDATED 22 The Posse Comitatus Act and Related Matters Congress has, however, authorized a substantial number of exceptions and has buttressed the act with an additional proscription against use of the Armed Forces to make arrests or conduct searches and seizures.185 Constitutional Considerations The Posse Comitatus Act raises at least three constitutional questions: (1) To what extent does the Posse Comitatus Act track constitutional requirements, beyond the power of the President or Congress to adjust or ignore? (2) To what extent do the powers which the Constitution vests in the President limit the power of Congress to enact the Posse Comitatus Act or any other provision restricting the President’s discretion to involve the Armed Forces in civilian affairs? (3) What specifically are the military law enforcement activities “expressly authorized in the Constitution” for purposes of the act? Constitutional Origins Lord Coke and his colleagues, in crafting the Petition of Right of 1628, found within that chapter of the Magna Carta and subsequent explanatory statutes that are the antecedents of our constitutional due process clauses a prohibition against martial law.186 In times of peace, this proscription would not abide either the quartering of troops among civilians or any form of martial law, be it imposed by tribunal or more summarily dispatched by soldiers controlling or punishing civilians. The Declaration of Independence lists the imposition of martial law upon us among those affronts to fundamental liberties that irrevocably ruptured our political ties to Great Britain. Finally, it is possible to see the protrusions of a larger, submerged constitutional principle which bars the use of the Armed Forces to solve civilian inconveniences in the Second, Third, and Fifth Amendments, with their promises of a civilian militia, freedom from the quartering of troops among us, and the benefits of due process. This view is not without judicial support. The courts have demonstrated a rather long-standing reluctance to recognize the authority of military tribunals over civilians.187 And members of the expressly authorize the use of the Army or Air Force to execute the law. These are sometimes referred to as “amendments” to the Posse Comitatus Act. Since they do not change language of the act itself, it seems to be more accurate to characterize them as expansions of authority under the statutory exception to the Posse Comitatus Act rather than as amendments or changes in the act itself. 185 “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 [10 U.S.C. §§ 271-282] 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.” 10 U.S.C. § 275. Soon after the enactment of current § 275, the Secretary of Defense promulgated such regulations which, subject to designated exceptions, prohibited: “(i) Interdiction of a vehicle, vessel, aircraft or other similar activity. (ii) A search or seizure, (iii) An arrest, stop and frisk, or similar activity. (iv) Use of military personnel for surveillance or pursuit of individuals, or as informants, undercover agents, investigators, or interrogators.” 32 C.F.R. § 213(10)(a)(3), 47 Fed. Reg. 14899, 14902 (April 7, 1982). Some years later the regulations were removed, 53 Fed. Reg. 23776 (April 28, 1993) and replaced with a new regulation combining various authorities related to domestic operations, 32 C.F.R. Part 185, 58 Fed. Reg. 52667 (Oct. 12, 1993), which in turn referred to relevant DOD Directives setting forth regulations in greater detail. 186 See supra “Background.” 187 Ex parte Milligan, 71 U.S. (4 Wall.) 3, 123-25 (1866); Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 Congressional Research Service R42659 · VERSION 8 · UPDATED 23 The Posse Comitatus Act and Related Matters Supreme Court seemed to acknowledge possible components of a larger principle in both Youngstown Sheet and Tube Co. v. Sawyer188 and Laird v. Tatum.189 But if a larger anti-martial law principle lies beneath constitutional sands, visible only in these amendments and the spirit of the Posse Comitatus Act, it has remained remarkably dormant. Those regions from which it might have been expected to emerge have been characterized most by inactivity. The boundaries of the Third Amendment are virtually uncharted.190 Until recently, U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960); O’Callahan v. Parker, 395 U.S. 258 (1969); but see Solorio v. United States, 483 U.S. 435 (1987) (holding that the jurisdiction of military tribunals depends upon whether the accused was a member of the Armed Forces at the time of alleged misconduct and, contrary to O’Callahan, not whether the crime was “service connected”). 188 343 U.S. 579 (1952). Article II, Section 2 make the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. 343 U.S. at 632 (Douglas, J., concurring). Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, ‘No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.’ Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to ‘provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions....” Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy. Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights. On the other hand, Congress has forbidden him to use the army for the purpose executing general laws except when expressly authorized by the Constitution or Act of Congress. 343 U.S. at 644-45 (Jackson, J., concurring) (emphasis in the original). In Youngstown, the Court held that, when Congress had specifically refused to grant such authority by statute, the President’s constitutional and statutory powers as President and Commander in Chief were not sufficient to support an executive order authorizing the Secretary of Commerce to use the resources of the federal government, including its Armed Forces, to seize and operate the country’s steel mills which were then threatened by a nation-wide strike. Id. at 587. 189 408 U.S. 1 (1972). The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities – and indeed the claims alleged in the complaint – reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Id. at 15-6. In Laird v. Tatum, the Court refused to order the military to stop collecting information about civilians unless the civilians could show how they had been hurt by what the military was doing. Id. at 3. (More precisely the Court held that, in the absence of any showing of specific harm or the realistic threat of specific harm, a claim, that the data gathering activities of the military services had been conducted so as to chill the First Amendment rights of the targets of those intelligence collection efforts, was nonjusticiable.) 190 See Tom W. Bell, The Third Amendment, Forgotten But Not Gone, 2 WM & MARY BILL RTS. J. 117 (1993); William S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 AM. J. LEGAL HIST. 393 (1991); William Sutton Fields, The Third Amendment: Constitutional Protection Congressional Research Service R42659 · VERSION 8 · UPDATED 24 The Posse Comitatus Act and Related Matters the outreaches of the militia-related Second Amendment appeared only slightly more visible.191 Even in the inviting context of the Posse Comitatus Act, the courts have generally avoided excursions into areas of its possible constitutional underpinnings.192 On the other hand, the Constitution appears to recognize that military force might occasionally be called for in handling domestic affairs. It permits Congress to authorize the use of the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”193 And it guarantees the states protection against invasion or usurpation of their “republican form of government,” and, upon the request of the state legislature, against “domestic violence.”194 While states are prohibited from keeping their own standing armies,195 they retain some control over their militias, subject to any constraints Congress may constitutionally impose, including the authority to call forth those forces to suppress insurrections or quell civil disturbances.196 The Constitution neither authorizes nor proscribes martial law (which is said to exist when civil authority is supplanted by From the Involuntary Quartering of Soldiers, 124 MIL. L. REV. 195 (1989). In one of the few reported Third Amendment cases, striking state correctional officers brought a civil rights action against state authorities who had used the officers’ prison facility resident quarters to house replacement national guard troops. The district court dismissed, Engblom v. Carey, 522 F. Supp. 57, 70 (S.D.N.Y. 1981), the appellate court reversed on the ground that it could not hold as a matter of law that the officers had no Third Amendment possessory interest in the resident quarters, 677 F.2d 957, 964 (2d Cir. 1982). On remand the district court dismissed based on the qualified immunity of the defendant state officials in light of the uncertainty of the right with respect to Third Amendment questions, 572 F. Supp. 44, 49 (S.D.N.Y.), aff’d, 724 F.2d 28 (2d Cir. 1983). The implications of the case prior to remand are discussed in The Third Amendment’s Protection Against Unwanted Military Intrusions, 49 BROOK. L. REV. 857 (1983). 191The Second Amendment might be seen as evidence of the founders’ preference for the Minute Men over Hessian mercenaries as a means of common defense. Story, speaking of the Second Amendment, noted the distaste in the early Republic not simply for a standing army’s involvement in domestic affairs but for existence of a standing army at all: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right o f the citizens to keep and bear arms has justly been considered, as the palladium of the Liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful the first instance, enable the people to resist and triumph over them. III JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1890 (1833). At one time, scholars disagreed over whether the Second Amendment’s predominant theme is the right to bear arms or this perceived need for a well regulated militia. See William Van Alstyne, The Second Amendment and the Personal Right to Bear Arms, 43 DUKE L. J. 1236 (1994); Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995). The Supreme Court seems to have resolved the matter in favor of the former. District of Columbia v. Heller, 554 U.S. 570 (2008). 192 See, e.g., United States v. Walden, 490 F.2d 372, 376 (4th Cir. 1974) (“[W]e do not find it necessary to interpret relatively unexplored sections of the Constitution in order to determine whether there might be constitutional objection to the use of the military to enforce civilian laws”). 193 U.S. CONST. art I, § 8, cl. 15. 194 U.S. CONST. art IV, § 4. 195 U.S. CONST. art. I, § 10, cl.3. 196 See Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849) (“[U]nquestionably a State may use its military power to put down an armed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42659. Public record. Not legal advice.