Who Can Enforce The Law? States' Guards' Legal Powers

The use of military personnel for civilian law enforcement is prohibited by federal law in the United States. However, there are exceptions to this rule, such as the Posse Comitatus Act, which allows the use of military forces for domestic law enforcement in certain circumstances. The National Guard, a reserve component of the US military, can be activated by governors for state missions, including law enforcement, if it aligns with state law. The District of Columbia National Guard is an exception, as it is under presidential control and can be used for law enforcement at the president's discretion. The Insurrection Act grants the president broad authority to deploy the military domestically, bypassing the Posse Comitatus Act. This has raised concerns about the potential for executive overreach and the need for reforms to establish clear standards for the use of military forces in domestic law enforcement.

The Posse Comitatus Act

The PCA was passed in 1878, after the end of Reconstruction and the return of white supremacists to political power in the southern states and Congress. The Act was a response to the military occupation of the former Confederate States by the United States Army during the twelve years of Reconstruction (1865–1877) following the American Civil War. In the former Confederate States, paramilitary groups used intimidation and violence to suppress African-American political power and return the South to rule by the white Democratic Party. Although African Americans were initially supported by the federal government, this support waned over time.

The PCA originally applied only to the United States Army, but an amendment in 1956 expanded its scope to include the United States Air Force. Further amendments in 1981 and 2021 extended the Act to cover the Navy, Marine Corps, and Space Force. The Coast Guard, despite being part of the federal armed forces, is not included in the PCA as it has express statutory authority to perform law enforcement. The PCA also does not apply to the Army National Guard or the Air National Guard when under state authority, allowing them to act in a law enforcement capacity within their home state or an adjacent state if invited by that state's governor. However, when Guard personnel are called into federal service, they become subject to the PCA until they are returned to state control.

There are several statutory exceptions to the PCA, including the Insurrection Act, which allows the president to deploy the military to suppress an insurrection, enforce federal law, or protect civil rights in a state. Another exception is derived from the Enforcement Acts, which allow the president to call upon military forces when state authorities are unable or unwilling to suppress violence that opposes citizens' constitutional rights. This exception was used by President Eisenhower to send federal troops to Little Rock, Arkansas, during the 1957 school desegregation crisis.

The Insurrection Act

The Act allows the president to deploy active-duty armed forces and to federalise the National Guard, deploying them to any state or territory to:

• Suppress an insurrection in a state, if assistance is requested by the state legislature or the governor.
• Enforce federal laws or suppress a rebellion against US authority if the president decides that "unlawful obstructions, combinations, or assemblages or rebellion" against the authority of the United States make it impracticable to enforce federal law via the ordinary course of judicial proceedings.
• Address an insurrection, domestic violence, unlawful combination, or conspiracy in any state, which results in the deprivation of constitutionally secured rights, and where the state is unable, fails, or refuses to protect those rights.

The Act does not define "insurrection", "rebellion", "domestic violence", or other key terms, and the Supreme Court has ruled that it is the president's decision alone to decide when to invoke the Act. However, once troops have been deployed, the Supreme Court has also ruled that the lawfulness of the military's actions can be reviewed by the courts.

State Active Duty status

The Posse Comitatus Act (PCA) is a federal law that limits the use of federal military personnel in enforcing domestic policies within the United States. The PCA prohibits federal armed forces from participating in civilian law enforcement activities, whether civil or criminal. However, there are exceptions to the PCA, such as the Insurrection Act, which allows the president to deploy active-duty armed forces and federalize the National Guard to enforce federal laws or suppress rebellions.

State Active Duty (SAD) status is a deployment status for the National Guard, where they perform state missions with state funding and operate under the command of the state's governor. In this status, the National Guard is governed by state law and can be used for law enforcement if it aligns with state legislation. The National Guard can be federalized and placed under the command of the Secretary of Defense, but when under state authority, they are exempt from the PCA and can act in a law enforcement capacity within their home state or adjacent states if invited by the governor.

The PCA does not cover the Coast Guard, which is a military branch with federal law enforcement authority. The Coast Guard can provide support to civilian law enforcement agencies, especially in combating drug smuggling, but they are not bound by the PCA.

The District of Columbia National Guard (DCNG) is an exception to the PCA as it is always under presidential control. This allows the president to deploy the DCNG for law enforcement at their discretion. Additionally, the National Guard can operate in "Title 32 status," a hybrid status where they receive federal funding but remain under state command, providing a loophole for federal influence in state law enforcement.

Hybrid status

The National Guard is a unique entity within the US military, with a dual status under federal and state authority. This hybrid status means that the National Guard can be called upon by the state governor to enforce state laws and maintain peace within the state, as well as being activated by the President to support federal missions. This dual role is a key feature of the National Guard and is often referred to as its "hybrid nature". This hybrid status is a result of the historical development of the National Guard and its unique position in the US Constitution. The Guard's state mission is to provide trained and disciplined forces for domestic emergencies and law enforcement, while its federal mission is to support the active-duty forces in defending the nation and protecting its interests. So, the National Guard has a distinct role and legal status that sets it apart from both active-duty military personnel and typical state law enforcement agencies.

The National Guard's federal mission is primarily focused on national defense and supporting active-duty military operations. When activated by the President, the National Guard becomes part of the federal reserve component and is subject to the same laws and regulations as active-duty military personnel. In this capacity, they are not typically involved in domestic law enforcement activities. However, their state mission is where their law enforcement role comes into play. When under state control, National Guard troops can be used to enforce state laws and support local law enforcement agencies. This can include responding to civil disturbances, providing disaster relief, and assisting in search and rescue operations, as well as helping to enforce state-level statutes and regulations.

The Posse Comitatus Act (PCA) is a federal law that prohibits the use of federal military personnel in domestic law enforcement activities. However, the PCA does not apply to the National Guard when it is under state control. This is an important distinction as it means that, in certain situations, the National Guard can be used to enforce laws and maintain peace within a state, filling a unique role that bridges the gap between military and civilian authorities. However, there are still limits to the National Guard's law enforcement powers, even when acting under state authority. When activated by the governor of a state, the National Guard operates under the relevant state's laws and the guidance of its attorney general. The specific authorities and limitations of the National Guard's law enforcement role can vary from state to state, depending on local laws and policies.

The National Guard's hybrid status and its potential involvement in law enforcement activities have been the subject of some debate and controversy. While the Guard can provide valuable support to local law enforcement, particularly in times of civil unrest or natural disasters, there are also concerns about the potential militarization of domestic law enforcement and the blurring of lines between military and civilian authorities. Balancing the National Guard's federal and state roles requires careful management and coordination between different levels of government, and the activation of the Guard for law enforcement purposes is typically a last resort, used only when local law enforcement agencies are overwhelmed or require specialized support.

Federalized or Title 10 status

The Posse Comitatus Act prohibits the use of active-duty personnel to enforce laws. However, there are exceptions to this rule. The President can federalize the National Guard and place them under the command of the Secretary of Defense. This is known as Title 10 status.

The National Guard can also operate in a "hybrid status", where they perform activities specified by Congress or the federal government and are paid with federal funds, but remain under the command of the state governor. This is referred to as Title 32 status. In this status, National Guard personnel may enforce laws if ordered by their governor to support operations or missions requested by the President or Secretary of Defense.

The Department of Defense has also claimed that the Constitution grants military commanders "emergency authority" to use federal troops to address civil disturbances or protect federal property when local governments cannot or will not do so. Additionally, the Declaration of National Emergency enhances the resources available to the military, and the Trump administration used this power to deploy federal troops to the US border.

Frequently asked questions