Keith Mack
The use of troops for law enforcement in the United States is a complex issue with a long history. It is primarily governed by two federal laws: the Posse Comitatus Act of 1878 and the Insurrection Act of 1807. The Posse Comitatus Act prohibits the use of federal troops in civilian law enforcement except when expressly authorized by law. This Act was passed in response to abuses during the Civil War and Reconstruction, and it embodies the American value of limiting military interference in civilian affairs. However, there are several exceptions and loopholes in the Act, including the Insurrection Act, which allows the President to deploy the military to suppress an insurrection or enforce federal laws in certain situations. In recent years, there have been debates about the applicability of these laws in various contexts, such as during the COVID-19 pandemic and in response to civil unrest. While the use of federal troops in law enforcement is rare, it has occurred in notable instances such as the 1992 Los Angeles riots and the 1957 school desegregation crisis in Little Rock, Arkansas.
| Characteristics | Values |
|---|---|
| Law barring federal troops from participating in civilian law enforcement | Posse Comitatus Act |
| Year of enactment | 1878 |
| Exceptions | Insurrection Act, Military Cooperation with Civilian Law Enforcement Agencies Act |
| Applicability | Army, Air Force, Navy, Marine Corps, Space Force |
| Non-applicability | National Guard, Coast Guard |
| Permissible assistance | Supportive and technical assistance, e.g. use of facilities, vessels, aircraft, intelligence support, technological aid, surveillance |
| Prohibited actions | Direct participation in search, seizure, and arrests |
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What You'll Learn
The Posse Comitatus Act
The Act was passed after the end of Reconstruction and the return of white supremacists to political power in the southern states and Congress. During Reconstruction (1865-1877), the United States Army occupied the former Confederate States, and the federal government supported African Americans. However, this support waned over time, and following the disputed 1876 presidential election, Congress prioritized prohibiting federal control over their states. After President Hayes used federal troops to end the Great Railroad Strike of 1877, there was bipartisan support for the Posse Comitatus Act.
There are statutory exceptions to the Posse Comitatus Act, such as the Insurrection Act, which allows the President to deploy the military to suppress an insurrection or enforce federal law in a state, with or without the state government's consent. Other exceptions include situations involving weapons of mass destruction, nuclear materials, counter-drug operations, and counter-terrorism. These exceptions highlight the balance between restricting military interference in civilian affairs and allowing for necessary federal intervention in certain circumstances.
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The Insurrection Act
The Act, which has not been meaningfully updated in over 150 years, is seen as dangerously overbroad and open to abuse. It is the primary exception to the Posse Comitatus Act, which prohibits the use of federal troops in civilian law enforcement. The Insurrection Act allows the President to deploy the military to assist with law enforcement, but not replace civilian authorities (this is not martial law).
The Act can be invoked in response to a state government's request, or with or without the state government's consent, to enforce federal law, suppress a rebellion, or protect a group's civil rights when the state government is unable or unwilling to do so. The Act does not define "insurrection," "rebellion," "domestic violence," or other key terms, leaving it to the President to decide when to invoke the Act. This has been upheld by the Supreme Court, which ruled in 1827 that "the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President".
There have been calls for the Insurrection Act to be overhauled to restrict the President's powers and prevent abuse.
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National Guard troops
The Posse Comitatus Act (PCA) is a federal law in the United States that prohibits federal troops from engaging in civilian law enforcement unless expressly authorised by law. The Act embodies the American principle that military interference in civilian affairs poses a threat to democracy and personal liberty.
The PCA, however, does not apply to the National Guard troops, who are under the command of their respective state governors. This means that National Guard troops can be used for law enforcement purposes as long as it is in accordance with state law.
In times of unrest, national emergency, or enemy attack, National Guard troops have been deployed for various purposes, including the 9/11 terror attacks, Hurricane Katrina, and to supplement US Customs and Border Protection activities at the US-Mexico border.
When National Guard personnel are called into federal service, they become part of the federal armed forces and are then bound by the PCA until they are returned to state control. An exception to this is the District of Columbia (DC) National Guard, which is always under presidential control. The Department of Justice has asserted that the DC National Guard can operate in a non-federal "militia" status, which means that the PCA does not apply, and the president can use them for law enforcement.
The Insurrection Act is another federal law that allows the president to deploy active-duty military forces on American soil to suppress an insurrection in a state, enforce federal law, or protect civil rights when the state government is unable or unwilling to do so.
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Military assistance
One notable exception is 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. This act has been invoked in instances of civil unrest, such as the 1992 Los Angeles riots, and in response to the COVID-19 pandemic. Additionally, the Posse Comitatus Act does not apply to National Guard troops, who are under the control of state governors and can be used for law enforcement if it aligns with state law.
Another loophole in the Posse Comitatus Act involves the District of Columbia National Guard, which is always under presidential control. The Department of Justice has interpreted that the DC Guard can operate in a "militia" status, exempting them from the Posse Comitatus Act and allowing the President to use them for law enforcement at their discretion.
In recent years, there have been calls to address the gaps in the Posse Comitatus Act, particularly after events in 2020 and 2021 that highlighted its limitations. While the act generally prohibits direct participation of military personnel in civilian law enforcement activities like search and seizure, arrests, and surveillance, it does allow for indirect assistance. This includes the use of military equipment and personnel, such as military working dog teams, training facilities, expert advice, and emergency capabilities.
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Civil liberties
However, there are exceptions to the PCA. The Insurrection Act, for example, allows the President to deploy the military to assist civilian authorities with law enforcement, such as enforcing a federal court order or suppressing an uprising against the government. The Insurrection Act has been invoked numerous times in American history, including by Presidents Eisenhower, Kennedy, and Lyndon B. Johnson during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South.
Another exception to the PCA is the Military Cooperation with Civilian Law Enforcement Agencies Act, which allows for military assistance to domestic law enforcement agencies, especially in combating drug smuggling. While this Act prohibits the direct participation of US military personnel in law enforcement activities like search, seizure, and arrests, it permits indirect assistance such as the use of military equipment and intelligence support.
Despite these exceptions, the use of troops for law enforcement is generally restricted. The PCA applies to the Army, Air Force, Navy, Marine Corps, and Space Force, while the Coast Guard is explicitly given law enforcement authority and is not bound by the PCA. National Guard troops, who usually report to state governors, are also not covered by the PCA and can participate in law enforcement if consistent with state law. However, when Guard personnel are called into federal service, they become subject to the PCA.
The PCA has come under scrutiny in recent years, with events revealing dangerous gaps in its coverage. For example, the District of Columbia National Guard is always under presidential control, and while the Department of Justice has asserted that the DC Guard operates in a "militia" status outside the PCA, this interpretation allows presidents to use the DC Guard for law enforcement at their discretion. Additionally, the PCA does not cover the National Guard's "Title 32 status," a middle ground between state and federal operations, creating another loophole.
In conclusion, while civil liberties are a key consideration in the use of troops for law enforcement, the PCA's limitations and exceptions allow for a complex interplay between military and civilian authorities in maintaining law and order.
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Frequently asked questions
The Posse Comitatus Act is a 143-year-old law that bars federal troops from participating in civilian law enforcement unless expressly authorized by law.
The Insurrection Act, which allows the President to deploy the military to suppress an insurrection in a state, enforce federal law, or protect a group of people's civil rights. Other exceptions include situations dealing with weapons of mass destruction, nuclear materials, counter-drug operations, and counter-terrorism.
Generally, the military is not used for civilian law enforcement in the United States, but there are exceptions. The Posse Comitatus Act allows for the military to be used in cases of domestic violence, protection of federal property, and enforcement of some federal laws and court orders.
The President can deploy active-duty troops to serve on US soil under the Insurrection Act. However, this is rare and generally only done in times of unrest, national emergency, or enemy attack.
There are concerns about the military's readiness capability being impaired by diverting resources toward civilian law enforcement. Additionally, the use of federal troops as a domestic police force is in tension with constitutional principles and long-standing American traditions.
