By this interpretation, presidents can use the DC Guard for law enforcement whenever they choose. That means they are not subject to the Posse Comitatus Act, even though they are serving federal interests. In the summer of , President Trump deployed the DC National Guard into Washington to police mostly peaceful protests against law enforcement brutality and racism.
That meant they were ultimately taking orders from the president. In this way, the Trump administration brought a large, federally controlled military force into Washington and used it for civilian law enforcement, all while skipping over the procedures in the Insurrection Act and evading the political costs of invoking it.
That is exactly what the Posse Comitatus Act is meant to prevent. Moreover, the deployment of non-federalized, out-of-state Guard forces into a jurisdiction without its consent represents another threat to the Posse Comitatus Act.
When operating in Title 32 status, Guard forces are exempt from the Posse Comitatus Act because they are under state command and control. In this scenario, the cooperating governor becomes a fig leaf for the president to use the military as a police force anywhere in the country, free from the constraints of the Posse Comitatus Act.
Congress should pass three reforms to help close these loopholes in the Posse Comitatus Act. First, it should transfer control over the DC National Guard from the president to the mayor of Washington. The president would still be able to take command of the DC Guard when necessary by federalizing it, but it would then be subject to the Posse Comitatus Act, just like all other federally controlled military forces. This will stop future presidents who want to use the military domestically, but do not want to follow the laws established by Congress, from going from governor to governor until they find one who is willing to do their dirty work.
Third, Congress should enact a law clarifying that the Posse Comitatus Act applies to National Guard forces whenever they report through a federal chain of command, regardless of whether they have officially been called into federal service. Gale and the Posse pioneered so-called common-law court methodology by "indicting" people in Oregon, Idaho and elsewhere using "citizens' grand juries.
The first known case of a citizens' grand jury issuing a written threat was in , in a conflict between a tax protester named George Kindred and state revenue authorities in Ingham County, Mich. A Posse group there issued a notice threatening the local sheriff and law enforcement authorities for their enforcement of a state tax order.
From there, the Posse spread up the west coast through Oregon and into the Pacific Northwest. A lot of these early chapters were not formed by Gale followers, but by people using paperwork designed by Henry Lamont "Mike" Beach in Portland, who plagiarized Gale's writings.
The Posse gained its first foothold in Wisconsin in The individual behind that, Thomas Stockheimer, organized a group of Posse followers that August to essentially abduct an IRS agent they lured to a farm. They held him for several hours and assaulted him. A month later, Stockheimer organized nearly supporters to disrupt a hearing of the state Department of Natural Resources in Eau Claire. On Sept. In March of that year, Richard Butler [the early Christian Identity preacher who had started a Kootenai County, Idaho, Posse unit and now leads the neo-Nazi Aryan Nations ] helped lead 50 Posse members in an unsuccessful attempt to "arrest" a city policeman in Couer d'Alene.
The officer was about to testify against a Posse member who was accused of assault with a deadly weapon. Then, on Aug. What the Posse did in these early years was to take the issues of land-use regulation and taxes — as well as members' personal problems, such as divorces — and use them to mobilize people in confrontations. This may all seem mild compared to the Oklahoma City bombing, but it signaled that the radical right was arming itself for a violent confrontation.
These were the first alarm bells. But it wasn't until the agricultural crisis of the late s that you really saw the Posse explode. LEVITAS: The primary problem farmers faced in the late s is that they did not, and still do not, receive prices that covered their cost of production.
You had several factors at work. The expansion of exports to the Soviet Union and elsewhere had encouraged farmers to plant "fence row to fence row. And the Carter Administration's policy was to vigorously encourage farmers to expand their operations and to use new technology to boost agricultural output.
By the end of the s, you had a situation where farmers were overextended on credit. You had massive overproduction, persistently low farm prices and then, on Oct. And there was also the [U. For all of these reasons, farmers had their backs to the wall. That gave Gale and his allies the foothold they needed to disseminate their ideology throughout the farm belt. Although many members in AAM's early years were conservatives, they also had a strong populist streak — they favored government intervention to improve the farm economy.
But sadly, almost from the beginning, you had the Posse trying to infiltrate AAM and spread its philosophy of right-wing antigovernment conspiracy theories, race hatred, anti-Semitism and Christian Identity. As the AAM grew, so did the Posse. It is effectively a civilian draft power for local sheriffs to conscript temporary personnel to aid in an emergency. Enacted in and updated in to include the Air Force, the Posse Comitatus Act makes it a federal crime to use the military for posse comitatus or domestic law enforcement:.
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.
Under the authority of 10 U. Even though there is vigorous debate over interpreting the Act, no one has ever been prosecuted for a violation.
Testimony of Edward S. Dennis Jr. Yet it remains an enduring limitation on the military in domestic life. Recent increases in military support of local policing call for a reexamination of the boundary between civilian policing and military operations. To make sense of American attitudes about military law enforcement and the impetus behind the Posse Comitatus Act, it is necessary to understand the ancient roots of resistance to expansions of posse comitatus. The concept of posse comitatus derives from the Roman practice of civilians accompanying proconsuls provincial governors as they traveled to their places of duty.
In the Anglo-American legal tradition, posse comitatus dates back to the thirteenth century, when antimilitary sentiment led to reliance on able-bodied civilian men over the age of fifteen to assist law enforcement. Douglas, The Right of the People In , Parliament outlawed the quartering of soldiers in civilian homes, as well as martial law military commissions for routine law enforcement and judicial punishment.
Research Serv. Swindler, Magna Carta: Legend and Legacy Continued use of martial law contributed to the English Civil War in , and the bloody Cromwell dictatorship between to sparked more resistance to domestic use of the military in peacetime. Puget Sound L. The long history of law and custom against military presence in civilian life engendered civilian expectations of due process and freedom from arbitrary judgments.
This traditional mistrust of the military crossed the Atlantic to American shores as the British colonized North America, and it was a principal grievance motivating colonial unrest and the American Revolution. Tensions boiled over at the Boston Massacre, when British troops killed five colonists in a crowd who had taunted the British soldiers with rocks and snowballs; the use of professional troops without parliamentary authorization infuriated the colonists.
In contrast, the President wields the Commander in Chief power over the armed forces but cannot use the troops for law enforcement except pursuant to a Posse Comitatus Act exception or other express authorization by Congress. This was not always the case. In the early American republic, Congress passed authorizing statutes allowing the President to call forth the military to put down rebellions against taxes and duties, deploy troops upon request of a state, fight lawlessness in the expanding West, and enforce civil rights in the postbellum South—to name just a few examples.
Nineteenth-century presidents viewed the Judiciary Act as including military forces within the posse comitatus, historically not available to sheriffs, even though the Act did not expressly include the military. See also Major H. The Cushing Doctrine facilitated enforcement of the Fugitive Slave Act, which entitled the owners of fugitive slaves to an arrest warrant by federal marshals, who in turn could enlist the citizenry and troops as posse comitatus.
Unsurprisingly, white Southern attitudes towards federal military law enforcement soured in the immediate postbellum period. No thank you. LII Wex posse comitatus.
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