Posse Comitatus And the President

November 26, 2018 -CSPS Student Fellow David Mendes discusses the Posse Comitatus Act and the use of the military by the Trump administration.

By David Mendes, November 26th

Since the passage of the Posse Comitatus Act in 1878, federal law has restricted the use of the military to enforce the law. However, many exceptions have been created by Congress and the courts which have allowed U.S. Presidents to use troops to quell disorder or enforce federal law when a state cannot, or will not. In October of this year, the Trump Administration deployed the U.S. military to the U.S.-Mexico border in support of Customs and Border Patrol (“CBP”) based on the perceived threat to national security posed by a migrant caravan of several thousand Central Americans, many of them women and young children.

The use of the active duty military in this way has raised questions about if the deployment violates the Posse Comitatus Act.  The general consensus has been that so long as the active duty military is not used to enforce the law but merely to support CBP to do so, the Act has not been violated. However, the deployment may further signal a willingness by this Administration to use the military in an expanded domestic role. This begs the question of how the military may be used in the context of the Administration’s immigration policies given the limitations of the Act.

Posse Comitatus (Latin for “power or force of the county”) has its historical origins in England and was a commonly exercised power of local sheriffs from the time of Alfred the Great. Under the common law, the local county sheriff could draw upon the able-bodied males of his county to pursue criminals, keep the peace, or enforce civil process.

Following the end of the U.S. Civil War, “Radical Republicans” in Congress attempted to reform the South and passed laws intended to guarantee by law, equality and freedom for all persons regardless of race. In the face of resistance by Southerners to enforce civil rights and reconstruction laws, federal officials were often unable to summon a citizen posse comitatus and instead summoned the federal posse comitatus by placing Union soldiers directly under the control of civilian law enforcement. Southern members of Congress were resentful of the federal posse comitatus and wary of future uses to impose Northern ideals and views on Southern Society. They introduced and passed the Posse Comitatus Act of 1878, which bared use of the military as a posse comitatus without prior approval by Congress.

Since the adoption of the Act, Congress has expressly authorized by statute over twenty exceptions to the Posse Comitatus Act to allow the military to be used to enforce civil laws. Congress has also created several allowances for military forces to share information, including intelligence and equipment with civilian law enforcement agencies, provided the military itself is not the actively enforcing the law on behalf of civilian law enforcement agencies. The Insurrection Act provides the clearest legal exception to the bar on use of the military to enforce the law. The Insurrection Acts, now codified in Title 10 of the U.S. Code, delegate from Congress to the President, the authority to call out the military in times of insurrection or civil disturbance.

The Trump Administration has reacted strongly to sanctuary cities and has sought to pressure them into renouncing their status and aid Immigration and Customs Enforcement (“ICE”) to identify, detain, and deport persons without legal status. Over three hundred cities and four states across the nation have self-proclaimed themselves as sanctuary cities or sanctuary states.

A sanctuary city, as a matter of local policy, does not cooperate with federal law enforcement with regard to immigration removal and deportation activities. In practice, this means the when a person without legal immigration status comes into local custody, the local law enforcement agency does not notify Immigration and Customs Enforcement (“ICE”). Additionally, if ICE learns the person(s) without legal status are in local custody they often issue a detainer request, asking the local agency to hold the person until ICE can come to the jail and take the person into federal custody. Many sanctuary cities refuse to comply with detainer requests and will only hold the person without legal status as long as the underlying reason for their detention warrants.

Both Presidents Eisenhower and Kennedy drew on their authority under the Insurrection Act to federalize soldiers of the National Guard and mobilize federal military units to enforce desegregation of schools in the South. Hypothetically, the Trump Administration could seek to use military forces to enforce immigration deportation and removal orders under the Insurrection Act, assuming that the cities “will not” enforce federal law. The Trump Administration could argue that this use is no different than the Eisenhower and Kennedy Administrations use of the same authority to integrate the South in the face of local and state government opposition.

President Trump has indicated that he intends to hire thousands of new ICE agents as a deportation force. Use of sworn federal law enforcement agents would avoid any need to circumvent the Posse Comitatus Act. However, with Democrats controlling the House of Representatives it seems far less likely that Congress will budget and appropriate the funds needed to expand ICE.  With the Trump Administrations focus on deporting undocumented immigrants and the recent deployment of the military to the U.S.-Mexico Border, it is potentially plausible the military could be used to speed deportations in sanctuary cities and states.

David D. Mendes is a part-time Master’s Degree student in the International Security Program at the Schar School of Policy and Government. He holds a Juris Doctorate from the University of New Mexico School of Law and a Bachelor of Arts in Liberal Arts from Soka University of America. David is a partner at Tappan, Rastegar, Mendes LLP, a full-service litigation firm serving clients in the District of Columbia and the state of Virginia. His research interests include the intersection of national security and private industry as it relates to emerging threats and technology.

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