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 purpose of the Posse Comitatus
Act – in concert with the Insurrection Act of 1807 – is to limit the powers
of the federal government in using federal military personnel to enforce
domestic policies within the United States.
It was passed as an
amendment to an army appropriation bill in 1878 following the disputed election
of Rutherford B. Hayes in 1876. The Compromise of 1877 marked the end of the
Reconstruction Era – and required the removal of occupation Union troops from
the South – restoring white supremacy in the South. (You can bet Trump’s racist
supporters know this history).
The Posse Comitatus Act
does not apply to the Army National Guard and the Air
National Guard under state authority from
acting in a law enforcement capacity within its home state or in an adjacent
state if invited by that state’s governor.
On September 30, 2006, the Congress modified the Insurrection
Act as part of the 2007 Defense Authorization
Bill (repealed as
of 2008). Section 1076 of the law changed Sec. 333 of the "Insurrection
Act," and widened the President's ability to deploy troops within the
United States to enforce the laws. Under this act, the President may also
deploy troops as a police force during a natural disaster, epidemic, serious
public health emergency, terrorist attack, or other condition, when the
President determines that the authorities of the state are incapable of
maintaining public order. The bill also modified Sec. 334 of the Insurrection
Act, giving the President authority to order the dispersal of either insurgents
or "those obstructing the enforcement of the laws." The law changed
the name of the chapter from "Insurrection" to "Enforcement of
the Laws to Restore Public Order."
The 2007 Defense Authorization Bill, with over $500 billion
allocated to the military, and which also contained the changes to the
Insurrection Act of 1807, was passed by a bipartisan majority of both houses of
Congress: 398-23 in the House and
by unanimous consent in the Senate.[4] For military forces to be used
under the provisions of the revised Insurrection Act, the following conditions
must be met:
(1) The President
may employ the armed forces, including the National Guard in Federal service,
to--
(A) restore public
order and enforce the laws of the United States when, as a result of a natural
disaster, epidemic, or other serious public health emergency, terrorist attack
or incident, or other condition in any State or possession of the United
States, the President determines that--
(i) domestic
violence has occurred to such an extent that the constituted authorities of the
State or possession are incapable of maintaining public order; and
(ii) such violence
results in a condition described in paragraph (2); or
(B) suppress, in a
State, any insurrection, domestic violence, unlawful combination, or conspiracy
if such insurrection, violation, combination, or conspiracy results in a
condition described in paragraph (2).
(2) A condition
described in this paragraph is a condition that--
(A) so hinders the
execution of the laws of a State or possession, as applicable, and of the
United States within that State or possession, that any part or class of its
people is deprived of a right, privilege, immunity, or protection named in the
Constitution and secured by law, and the constituted authorities of that State
or possession are unable, fail, or refuse to protect that right, privilege, or
immunity, or to give that protection; or
(B) opposes or
obstructs the execution of the laws of the United States or impedes the course
of justice under those laws.
To proclaim a state
of insurrection is a necessary prerequisite if cascading powers, such as is
found in 50
U.S.C. § 212Confiscation of property employed
to aid insurrection, are to be used.
The original
wording of the Act required the conditions as worded in Paragraph (2), above,
to be met as the result of
insurrection,
domestic violence, unlawful combination, or conspiracy
The new wording of
the Act, as amended, still requires the same conditions as worded in Paragraph
(2), above, but those conditions could, after the changes, also be a result of
natural disaster,
epidemic, or other serious public health emergency, terrorist attack or
incident, or other condition
and only if
domestic violence
has occurred to such an extent that the constituted authorities of the State or
possession are incapable of maintaining public order.
By provisions in
the amended act, Congress was granted the right to be informed immediately and
every 14 days thereafter during the exercise of federal authority under these
conditions.
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