Posse Comitatus and placing America's military on our border

April 4, 2018
by Fred Elbel

Article 4 Section 4 of the United States Constitution states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The Posse Comitatus Act was passed in 1878 to prohibit the use of U.S. military forces to perform the tasks of civilian law enforcement - unless explicitly authorized by Congress.

The Posse Comitatus Act does not apply to the Air National Guard or the Army National Guard when they are acting in a law enforcement capacity within their own state as ordered by the governor of that state or in an adjacent state if requested by the governor of that state.

The Present can indeed place United States military on the border in an assisting role. Indeed, the President can place the military on the border to secure against invasion.

Here is more information on Posse Comitatus and placing the military on the United States border:

 

Exclusions and Limitations of the Posse Comitatus Act, Wikipedia:

There are a number of situations in which the Act does not apply. These include:
  • Army and Air National Guard units and state defense forces while under the authority of the governor of a state;
  • Federal military personnel used in accordance to the Insurrection Act, as was the case during the 1992 Los Angeles riots.
  • Under 18 U.S.C. § 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if domestic law enforcement is inadequate to address certain types of threats involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness. The only exemption is nuclear materials.
  • Support roles under the Joint Special Operations Command
  • Enforcement of federal law at the discretion of the President of the United States, such as with the 101st Airborne Division by President Dwight D. Eisenhower to integrate Little Rock Central High School in 1957.

 

18 U.S. Code § 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 Military Can Secure the Border and Build the Wall - Why President Trump is right to call out the troops, by Daniel Greenfield, FrontPage Mag, April 4, 2018:

The United States has 14,000 troops in Afghanistan, 39,000 in Japan, 34,805 in Germany, 23,000 in South Korea, and around 5,200 in Iraq. Our military protects the borders of countless nations.

Except our own.

In 1919, we had 18,500 soldiers on the border....

If an enemy army were invading South Korea, our soldiers would swing into action. But the United States has already been invaded. The invaders have occupied and seized control of state governments, including California, while declaring that their rebel cities will defy Federal immigration law....

[President Eisenhower's] Operation Wetback was fantastically effective in clearing illegal aliens out of California and Texas....

Some commentators have claimed that the Posse Comitatus Act would prevent the use of any military forces other than the National Guard on the border. But securing the border against foreign invaders (as opposed to domestic law enforcement directed against citizens) has always been a military matter.

Furthermore the military is already authorized to operate in areas where drug smuggling occurs.

Stopping illegal migrants does not subject “citizens to the exercise of military power”. If the military does not supplement ICE, but directly secures the border, there would be no Posse Comitatus issue.

But the law also permits the use of military force to “prevent disruption of Federal functions”.

Sanctuary states like California have disrupted the functioning of immigration law and have even passed laws prohibiting citizens from cooperating with Federal authorities. 10 U.S.C. 332, “authorizes use of the militia and Armed Forces to enforce Federal law when unlawful obstructions or rebellion against the authority of the United States renders ordinary enforcement means unworkable.”

The unlawful obstruction of immigration law by sanctuary cities and states has made ordinary enforcement unworkable. The rebellion against the authority of the United States must end.

10 U.S.C. 333 further, “authorizes use of the militia and Armed Forces when domestic violence or conspiracy hinders execution of State or Federal law, and a State cannot or will not protect the constitutional rights of the citizens.” That’s the current state of affairs in California and elsewhere....

 

U.S. military on border would have limited role, ABC, April 3, 2018.

Posse Comitatus Act and the US Military on the Border, by Robert Longley, ThoughtCo, April 4, 2018:

The proposal brought questions of its legality under the 1878 Posse Comitatus Act. However, in 2006 and again in 2010, Presidents George W. Bush and Barack Obama took similar actions....

the Posse Comitatus Act limits the Guard troops to acting only in support of the U.S. Border Patrol, and state and local law enforcement officers....

The Posse Comitatus Act of 1878 prohibits the use of U.S. military forces to perform the tasks of civilian law enforcement such as arrest, apprehension, interrogation, and detention unless explicitly authorized by Congress.

The Posse Comitatus Act, signed into law by President Rutherford B. Hayes on June 18, 1878, limits the power of the federal government in the use of federal military personnel to enforce U.S. laws and domestic policies within the borders of the United States....

The Posse Comitatus Act does not apply to the Army National Guard and the Air National Guard when acting in a law enforcement capacity within its own state when ordered by the governor of that state or in an adjacent state if invited by that state’s governor....

Operating within the limitations of the Posse Comitatus Act, and as acknowledged by the Obama administration, National Guard troops deployed to the Mexican Border States will, as directed by the states' governors, support the Border Patrol and state and local law enforcement agencies by providing surveillance, intelligence gathering, and reconnaissance support. In addition, the troops will assist with "counternarcotics enforcement" duties until additional Border Patrol agents are trained and in place. The Guard troops may also assist in the construction of roads, fences, surveillance towers and vehicle barriers necessary to prevent illegal border crossings....

On Oct. 25, 2005, the House of Representatives and Senate enacted a joint resolution (H. CON. RES. 274) clarifying Congress' stance on the effect of the Posse Comitatus Act on the use of the military on U.S. soil. In part, the resolution states "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 Posse Comitatus Act does not prohibit US Military on our borders, The United Patriots of America:

Myth #1 The US Constitution prohibits posting US troops on the border.

The US Constitution says no such thing. In fact, Article IV states:

Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

So the US Constitution clearly requires the federal government to protect states from invasion. Almost a million aliens illegally pouring across the border into states each year is clearly an invasion.

Myth #2 The Posse Comitatus Act prohibits US troops from guarding US borders.

This 1878 act was enacted to prevent Union troops from continuing to enforce federal laws in the defeated South after the American Civil war. Here is the text as modified by Congress in recent years:

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.

Guarding US borders from foreign invasion is not “law enforcement.”

The US Army exists to defend the US from foreign invasion, which is expressly authorized by the US Constitution. Guarding the Mexican border was the Army’s primary peacetime mission until 1940, and no one ever declared this was in violation of this 1878 act....

 

Learn about the history and rationale for the 1878 Posse Comitatus Act

Tyranny and Posse Comitatus, by William Norman Grigg,The New American, October 31, 2016.

The Posse Comitatus Act and the United States Army: A Historical Perspective, by Matt Matthews, Combat Studies Institute Press, Fort Leavenworth, Kansas.

Appendix D: Overview of the Possee Comitatus Act, from Preparing the U.S. Army for Homeland Security Concepts, Issues, and Options, by Eric V. Larson, John E. PetersRand Corporation, 2001.