Since the Trump administration authorized the military to use force along the US-Mexico border, many are raising legal challenges to the president’s border policy by invoking a 19th century law, the Posse Comitatus Act, that generally prohibits the federal government from using the military for domestic law enforcement functions unless specifically authorized by the Constitution or Congress.
According to Secretary of Defense James Mattis, over 5,000 active duty troops are now engaged in supporting missions along the border in Texas, Arizona, and California.
The actions authorized by the White House are those the Secretary of Defense “determines are reasonably necessary” including “a show or use of force, crowd control, temporary detention, and cursory search.” The military has also been given the option to use lethal force, if conditions make it necessary to do so.
It is therefore not surprising that the same media panelists who routinely attack President Trump are ranting about the president violating the Posse Comitatus Act, which stops U.S. military from involvement in most civilian law enforcement roles.
Secretary Mattis stressed the need to keep the military away from civilian law enforcement roles.
“We are not doing law enforcement,” Mattis told the press. “We do not have arrest authority.”
Mattis indicated that, because National Guard troops are also present at the border, the governors of affiliated states could give them arrest authority.
“We’ll decide if it’s appropriate for the military, and at that point, things like Posse Comitatus obviously are in play,” Mattis said. “We’ll stay in strict accordance with the law.”
The Posse Comitatus Act of 1878 was signed into law by President Rutherford B. Hayes on June 18, 1878. It was passed as an amendment to an army appropriation bill following the end of Reconstruction and was subsequently amended in 1956 and 1981.
The Constitution grants the president the power to utilize the armed forces to defend the nation’s territory, as well as to use the military to support civil authorities in preserving the peace.
The Posse Comitatus Act limits but does not eliminate the power of the president to declare “martial law” when local law enforcement and court systems cannot properly function. In such cases, all civilian police powers are assumed by the military. The president must also be able to deploy the military to counter insurrections, rebellions, or invasions.
In addition to the exceptions to Posse Comitatus, which allow the military to support civilian authorities in instances such as national disasters or terrorist acts, a federal law, Title 10, Chapter 13 of the U.S. code, is particularly pertinent.
When the president determines that unlawful “obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” the president has the power to “use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
Thousands of foreign nationals intend to engage in an unlawful incursion of U.S. territory, and some of them have already demonstrated a willingness to resort to violence in disregard of the laws of Mexico. Homeland Security Secretary Kirstjen Nielsen has said that as many as 500 criminals and gang members are within the groups heading towards the border. The territorial protection of the nation gives the president the authority to act as commander-in-chief in the case at hand.
Also contained in Chapter 13 is additional power of the president to use the armed forces. The language further states that the president “shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” as long as the insurrection, domestic violence, unlawful combination, or conspiracy “so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection…”
If President Trump has reasonable grounds to believe that the thousands of foreign nationals who reportedly intend to “rush the border” would overwhelm the resources of the border states, and moreover pose a security threat to the border patrol, he is empowered to “take such measures as he considers necessary.”
In the executed directive that granted military authority, Chief of Staff Gen. John Kelly wrote that “credible evidence and intelligence” indicated that the thousands of foreign nationals, many of whom are now in Tijuana, Mexico, “may prompt incidents of violence and disorder” that could threaten border officials.
Once again the nation may witness the filing of lawsuits with pre-selected liberal federal district court judges, seeking to have the power of the commander-in-chief curtailed.
However, as has also been seen before, it is highly likely that the president’s power to use the military to protect the nation’s citizens, the nation’s territory, and the nation’s sovereignty will be held to be lawful.