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What does the term “posse comitatus” mean?

"In British and American law, a posse comitatus is a group of people who are mobilized by the sheriff to suppress lawlessness in the county. In any classic Western film, when a lawman gathers a “posse” to pursue the outlaws, they are forming a posse comitatus. The Posse Comitatus Act is so named because one of the things it prohibits is using soldiers rather than civilians as a posse comitatus."

What are the origins of the Posse Comitatus Act?

The Posse Comitatus Act was passed in 1878, after the end of Reconstruction and the return of white supremacists to political power in both southern states and Congress. Through the law, Congress sought to ensure that the federal military would not be used to intervene in the establishment of Jim Crow in the former Confederacy.

Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value. It finds expression in the Constitution’s division of power over the military between Congress and the president, and in the guarantees of the Third, Fourth, Fifth, and Sixth Amendments, which were in part reactions to abuses committed by the British army against American colonists.

What does the Posse Comitatus Act say?

The Posse Comitatus Act consists of just one sentence: “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.”

In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution.

Are all members of the military covered by the Posse Comitatus Act?

No, only federal military personnel are covered. While the Posse Comitatus Act refers only to the Army and Air Force, a different statute extends the same rule to the Navy and Marine Corps. The Coast Guard, though part of the federal armed forces, has express statutory authority to perform law enforcement and is not bound by the Posse Comitatus Act.

Members of the National Guard are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. That means they are free to participate in law enforcement if doing so is consistent with state law. However, when Guard personnel are called into federal service, or “federalized,” they become part of the federal armed forces, which means they are bound by the Posse Comitatus Act until they are returned to state control.

What are the main statutory exceptions to the Posse Comitatus Act?

There are many statutory exceptions to the Posse Comitatus Act, but the most important one is the Insurrection Act. Under this law, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.

What are the constitutional exceptions to the Posse Comitatus Act?

There are no constitutional exceptions to the Posse Comitatus Act. The law allows only for express exceptions, and no part of the Constitution expressly empowers the president to use the military to execute the law. This conclusion is consistent with the law’s legislative history, which suggests that its drafters chose to include the language about constitutional exceptions as part of a face-saving compromise, not because they believed any existed.

This has not stopped the Department of Defense from claiming that constitutional exceptions to the law exist. The Department has long claimed that the Constitution implicitly gives military commanders “emergency authority” to unilaterally use federal troops “to quell large-scale, unexpected civil disturbances” when doing so is “necessary” and prior authorization by the president is impossible. In the past, the department also claimed an inherent constitutional power to use the military to protect federal property and functions when local governments could not or would not do so. The validity of these claimed authorities has never been tested in court.
https://www.brennancenter.org/our-work/research-reports/posse-comitatus-act-explained

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