Thread: The Posse Comitatus Act of 1878

The Posse Comitatus Act of 1878

“the power of the county”

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


18 U.S.C. 1385

Sec. 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Posse Comitatus Act prohibits the REGULAR military or the 'federalized' National Guard/Reserves from executing the laws of the United States NOT the state militia's or the National Guard/Reserves under the command of the Governors of the States.

If Bush and Cheney can declasify information that outs CIA agents, why can't they say they'll suspend the Posse Comitatus Act?

I am not Constitutional expert but I believe the President does have all the power needed to issue executive orders in the name of national security. I don't think this power has ever been challenged. John Kennedy used this power during the Cuba blockade. Bush does not order the regular Armed forces into the border or federalize the Guard because of politics, but I believe he has the power.

Originally Posted by AllAmerican

I am not Constitutional expert but I believe the President does have all the power needed to issue executive orders in the name of national security. I don't think this power has ever been challenged. John Kennedy used this power during the Cuba blockade. Bush does not order the regular Armed forces into the border or federalize the Guard because of politics, but I believe he has the power.

Well, it all comes down to belief, doesn't it, given that the executive order is something that was created out of thin air. If there's one thing that's for sure, it's that the founding fathers never intended for the executive branch to have that sort of de facto legislative power. When it was originally conceived, the executive order did not have the force and effect of law, but rather applied only to administrative functions related to the operation of the federal entity, and having no power in the states. EOs certainly were not capable of superseding duly enacted law (such as the Posse Comitatus Act), as they could only be used pursuant the administration of said laws.

No, unless clearly defined in the Constitution or Act of Congress. Only 2 ways.

Congress could change the Posse Comitatus Act tomorrow if they chose to.

Originally Posted by CountFloyd

Congress could change the Posse Comitatus Act tomorrow if they chose to.

But we would not want them to, would we?

It seems to me that the best answer would be to send the Guard troops back to their home states and allow their governors to use them on the border as they saw fit.

Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President's obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

The President has the power needed to act. "not a complete barrier" is all the authorization he needs. Well that and some gonads.

mapwife

CrocketsGhost is correct, the President DOES NOT have the authority under the Constitution to issue executive orders which in fact BY PASS the Congress. Nor is the President the one to federalize the guard -- that power also was vested in the people and the states.

CountFloyd wrote

Congress could change the Posse Comitatus Act tomorrow if they chose to.

we definitely DO NOT want Congress to suspend the Posse Comitatus Act -- it was enacted after the President in 1861 unconstitutionally federalized the troops without an Act of Congress and unconstitutionally INVADED the states.

The Posse Comitatus Act PREVENTS the federal government from activating the army under the control of the federal government

CrocketsGhost replied

But we would not want them to, would we?

It seems to me that the best answer would be to send the Guard troops back to their home states and allow their governors to use them on the border as they saw fit.

unfortunately CrocketsGhost, I don't think there are many governors that understand the rights of the citizens and the states under the Constitution. If they did, we would not be in this mess now.

But definitely, the governors should be the 'Commander-in-Chief' of the troops on the border NOT the defense department or the Pentagon --

I absolutely do not know by what law or right it was done - but we had American troops guarding the border during WWII. They also guarded some bridges that were inland quite some distance.

My father was one of those men - so was it because we were in a declared war? I don't know - but I do know it was done.

American troops manned gun embankments on our coastlines -

No, none of us want this PResident or any of those people in Washington to get the idea of using the military for domestic law enforcement.

This, however, is not domestic law enforcement - this is enforcing an international border. I know that Pres. Bush and Fox are trying to make us think about this as no different than the border between two US states. It is not. It is an international border. It separates us from the rest of the world - not just Mexico. People from all over the world are making their way here through Mexico.

We, as a country, are being invaded.

A border is a first line of defense - certainly the military could/should be able to guard it. It is not domestic enforcement - it is security enforcement. That should be the very first job of the military -