Wed, 01/25/2023 - 9:19am
The Posse Comitatus Act and the American Military: An Old Law Under a New Light
By Travis L. Eddleman
Over the last several years, the Posse Comitatus Act (PCA), a piece of federal legislation dating back to 1878, has made a comeback to the forefront of American political commentary, legal review, and military consideration. In 1960, Furman referred to the PCA as nothing more than “a maze to be threaded by each Commander at each request for troops” (p. 97). However, recent usage of National Guard troops in Portland, OR, and Washington, D.C., along with numerous deployments of Army personnel (under both Title 10 and Title 32 authority) to the Southwest Border have reignited public debate surrounding the PCA, the Insurrection Act, and the state of the nation with the perception of an increasingly pervasive military presence in the realm of civilian law enforcement (Cohen & Stevens, 2021; Ghiotto, 2020). Many of these instances arise through the exercising of the Insurrection Act, a series of laws passed in the late 18th and early 19th centuries that now act as an exception to the provisions of the Posse Comitatus Act (Goitein & Nunn, 2022).
History of the PCA
The PCA has changed since its inception in 1878. The Act was originally worded as follows:
It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws as, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress. (Posse Comitatus Act, 1878)
However, in 1956 the act was repealed and reenacted under Title 18 U.S.C. 1385 (Furman, 1960). The PCA now reads differently to incorporate the Air Force and indicate the criminal penalties of violating the Act.
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. (18 U.S.C. 1385)
https://smallwarsjournal.com/jrnl/art/posse-comitatus-act-and-american-military-old-law-under-new-light
