The Posse Comitatus Act Explained

Hey everyone. Welcome back. 

As Rutherford B. Hayes took the oath of office, a smattering of federal troops remained stationed throughout the former confederacy and, as I’ve covered in previous episodes, provided protection and support for a few Republican-led statehouses. This was something that was, in the eyes of the Southern Democrats looking to retake power, politically unacceptable. And, as I have also discussed before, just a few short weeks after his inauguration, the President allowed the federal troops guarding the statehouses to be withdrawn and return to their local barracks. As it turned out, even the mere presence of federal troops was a bridge too far for some. 

The Posse Comitatus Act has been making headlines lately and it was one of the laws you listed when I conducted my poll a few months back asking about releasing some more civics-focused episodes. And, as luck would have it, the Posse Comitatus Act - or PCA for short - just so happened to be passed during the Gilded Age, so it felt like a good time to explore it a bit more. 

So this week, I am diving into the Posse Comitatus Act. What is it? What prompted its passage? How has it evolved? 

Grab your cup of coffee, peeps. Let’s do this. 

Before I dive too deeply into the PCA, I want to set the scene, as it were to how it came to be. Although the Union army was quite massive at the close of the Civil War, standing at an estimated one million men, the government made quick work of demobilizing once hostilities were over. By the 1876 presidential election, the army counted less than 30,000 men, with Congress taking additional steps to reduce those numbers even further. Those enlisted were not just made up fighting forces – they included everything from medical personnel to chaplains. While these men were spread throughout the country, a concentrated number were deployed throughout the former confederacy, which were divided into “military districts” to help enforce federal law. This was admittedly an imperfect system but I think the context here is important to understanding the arguments surrounding the bill and how and why it got passed in the first place. 

In the aftermath of the Civil War, several states were required to meet several qualifications before they could rejoin the union - including ratifying the 14th Amendment and granting Black men the franchise. As we’ve explored together on the show, this was not something every former member of the confederacy was enthusiastic to do - even if they agreed to do so on paper. There were countless incidents of racial violence against Black families whose patriarchs stepped out of line or simply decided to exercise his right to vote. And when local law enforcement shared the view that Black Americans did not have the intelligence to vote or were otherwise inferior to their white neighbors and were thus unwilling or unmotivated to investigate crimes committed against them, the only way to ensure that the federal law had a chance was to have federal representatives in place. In this case, that meant federal troops.  

But in 1877 once Hayes was in office and the Democrats had retaken control of Congress, they saw an opportunity to finally eliminate the federal troop presence that had propped up Reconstruction governments. And it is under these conditions that the Posse Comitatus Act came to fruition. If you remember from my coverage of Hayes, I mentioned that once Democrats gained control in Congress they tried repeatedly to undercut the mild advancements made during Reconstruction. One of their preferred tactics was to attach riders to appropriations bills that Hayes - for the most part - was good at swatting back. During the 44th Congress, the placement of federal troops became a key issue, and they debated whether it was necessary, legal, or appropriate to have a federal peacetime army used for domestic governance in the southern states. It was not sufficient, in their opinion, that the president had ordered troop removal from state houses. For Democrats in the former Confederacy, a permanent federal federal standing army - especially one used to enforce Reconstruction - was viewed as fundamentally illegitimate. Unable to come to a resolution, Congress failed to vote to pass a funding bill for the Army, punting the issue for the next Congress in 1878. Several southern Congressmen argued that it was against American tradition to have a peacetime army on hand, with Senator Benjamin Hill of Georgia arguing quote, “Whenever the idea obtains that you need a military power to govern the great body of the people of this country you have given up the fundamental theory of your system of government; it is gone,” end quote. 

Republicans tried to argue that with the reduced number of stationed troops, there simply wasn’t enough to pose an actual threat. They also highlighted that having a peacetime army may have been helpful during the Great Railroad strikes the prior summer. Regardless, with the funding for the Army under the Army Appropriations bill still unresolved, the Democrats sensed they had the political clout to make the changes they wanted. Thus, an amendment was attached to the Appropriations bill - what we know as the Posse Comitatus Act, which read quote: From and after the passage of this act 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, except in such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress,” end quote. 

Some Democrats used the suspicious circumstances of Hayes’ election to their advantage in calling for the bill’s passage, demanding the President’s signature with one representative from New York hitting a little below the belt when he charged that the Hayes administration had quote “reaped the rewards of the abuse of the army and today occupy positions to which they were never chosen by the people of this country,” end quote. Over a bit of a political barrel, Hayes understood that a veto of the amendment on the appropriations bill might send the wrong message - and might confirm for those who were already suspicious of his true intentions. Likely feeling as if he had no good options, the President signed the PCA on June 18, 1878. It has remained on the books relatively unchanged ever since. Despite the fact that the letter of the law has not changed, its legal interpretation by the courts has evolved, creating concern among critics who want to see the law updated to make the rules explicit, close the loop holes, and add clarity to the PCA. 

In a 2003 study published in Yale Law & Policy Review, author Sean Kealey found that beginning in the late 1960s and early 1970s, courts began to have a narrower interpretation of the act, creating a situation that blurred the line between the military operations and civilian law enforcement. In 1967, the military aided local authorities in quelling riots that broke out in Detroit. Part of their assistance involved members of Army Intelligence who created a surveillance system of participating civilians and groups designated as potential security threats. When discovered, those targeted challenged the activities in court claiming that gathering intelligence on individuals engaging in legally protected activities could have a chilling effect on their First Amendment rights and that by engaging in such activity the military was in violation of the PCA. However, in the 1972 Supreme Court decision in Laird v. Tatum, the court found that the mere existence of a surveillance system was not sufficient and that in order for there to be a violation, there had to be evidence of quote “an actual or immediate threat of injury” end quote to a citizen. 

Since then, courts have continued to narrow their interpretation of the PCA, finding that it does not apply in several situations including when the military provides an indirect role in civilian law enforcement, performs law enforcement on a military installation, or when the military conducts operations outside of national borders. You may be wondering what exactly constitutes an indirect role - and how the courts landed there. In the review by Sean Kealey, he argues the lines began to really blur during the Reagan administration when it focused its efforts on combatting drug addiction in the United States and launched the quote unquote war on drugs. 

Congress aided in these and created several exceptions to the PCA that allowed the military to assist enforcing a series of laws, including drugs. These exceptions were intended to be limited, with the military serving in a support capacity but once established, these relationships only continued to flourish and expand. These exceptions allowed for information sharing between the military and law enforcement officials when doing so is quote “collected during the normal course of military operations and is relevant to a violation of federal or state law,” end quote. It also permitted the military to lend out its extensive, high grade equipment to local law enforcement - as long as doing so did not adversely impact military preparations. Lastly, these exceptions also permitted military leaders to assist in training local law enforcement - training programs that have continued to evolve. Despite authorizing all of these exceptions, Congress stopped short of permitting the military to join local officers in conducting searches, executing warrants, or conducting arrests. 

In the aftermath of the terrorist attacks on September 11th, concerns about homeland security meant that collaboration between the military and local law enforcement was seen more as a mechanism to protect the country rather than a potential breach of the PCA and thus the military has continued to have an increased role in providing intelligence, equipment, and training to police across the country. 

One major issue with the PCA is the National Guard - who usually fall outside of the jurisdiction of the act because they report to state authority. As such, they are generally allowed to participate in law enforcement activities as long they fall within state laws. The caveat is when the guard is federalized - then they fall under the jurisdiction of the act and are treated like other members of the military. But there are two loop holes for guardsmen. The first are for those who are stationed in DC; they are always under the President’s control. The Department of Justice has argued that despite this, the guard should not be considered a federal force, but should instead fall under a third descriptor - a non-federal militia - which would then be exempt from the PCA’s restrictions and allow their use in law-enforcement roles. This interpretation has been used most clearly in 2020 and has reemerged most recently over the last several months. 

Another frequently cited loophole involves what’s known as Title 32 status. Under Title 32, National Guard members are federally funded but remain under the authority of their state governors rather than being formally federalized. This arrangement has been treated as placing them outside the Posse Comitatus Act, creating a legal gray area that like the DC Guardsman was used prominently in 2020 and has recently come up for debate.

Those in favor of reform cite the National Guard loopholes and the lack of clarity in the law’s language as their justification for an update to the act. Since the PCA does not provide a concrete definition for what constitutes law enforcement activity - and since policing practices has evolved significantly since the bill passed in 1878 - proponents of change argue that there needs to be much more specificity included in an updated version of the PCA. They argue that there should be no constitutional exceptions where the military is allowed to police the American people. 

A product of a political fight meant to insulate white political power at the expense of Black Americans in the final moments of Reconstruction, the Posse Comitatus Act reinforced a core foundational belief of American democracy - that the military’s primary focus was to defend the country and its populace. It was not meant to serve in a law enforcement capacity. Although the line between the military and local police has been blurred over the years as the result of the war on drugs during the 1980s or the war on terror in the 2000s, the PCA reinforces the idea that the military should not be used as anything other than the nation’s guard. 

Thanks, peeps. I will see you next week.