Jonah Patel
The US Constitution does not explicitly forbid the deployment of the military within the US. However, it does not grant the president the authority to deploy the military domestically either. This power is instead vested in Congress, which has passed laws such as the Posse Comitatus Act and the Insurrection Act to limit the use of the military in civilian law enforcement. These acts outline specific circumstances under which the president can deploy the military within the US, such as to suppress an insurrection or enforce federal law. While these acts provide a legal framework for domestic military deployment, there are concerns about their effectiveness in preventing the abuse of power, particularly in light of recent events that have revealed dangerous gaps in their coverage.
| Characteristics | Values |
|---|---|
| Name of the law that forbids military deployment | Posse Comitatus Act |
| Year of enactment | 1878 |
| What does it prohibit | Using active-duty personnel to "execute the laws" |
| Who does it apply to | Army, Navy, Marine Corps, Air Force, and Space Force |
| Who is not covered by the Act | Army National Guard, Air National Guard, and the United States Coast Guard |
| Who enforces the Act | Secretary of Defense |
| Penalties for violation | Fine, imprisonment for not more than two years, or both |
| Exceptions to the Act | Insurrection Act, Enforcement Acts |
| Who can invoke the Insurrection Act | The President |
| Who decides when to invoke the Insurrection Act | The President |
| Who does the Insurrection Act apply to | National Guard |
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What You'll Learn
The Posse Comitatus Act
The 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. The Act, § 15 of the appropriations bill for the Army for 1879 (found at 20 Stat. 152) was a response to, and subsequent prohibition of, the military occupation of the former Confederate States by the United States Army during the twelve years of Reconstruction (1865–1877) following the American Civil War (1861–1865). The original Posse Comitatus Act referred exclusively to the United States Army, but a subsequent amendment in 1956 expanded its scope to the United States Air Force. In 2021, the National Defense Authorization Act for Fiscal Year 2022 further expanded the scope of the Act to cover the United States Navy, Marine Corps, and Space Force.
There are 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. The Insurrection Act does not authorize martial law. It generally permits the military to assist civilian authorities (whether state or federal), not take their place.
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The Insurrection Act
The Act has been invoked numerous times throughout American history, including during labour conflicts, civil rights movements, and in response to natural disasters. The last invocation was in 1992 during the Los Angeles riots following the Rodney King case. While it has rarely been used in recent years, there have been discussions about invoking it to address issues such as illegal immigration and border control. However, the Insurrection Act does not authorise martial law, and federal troops must still abide by other laws and constitutional rights even when deployed under this Act.
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The US Constitution and Congress
The US Constitution does not explicitly forbid the deployment of the military within the US. Instead, it gives Congress the authority to call forth militias to execute the Laws of the Union and suppress Insurrections. The Constitution also makes the federal government responsible for protecting each state "against domestic violence" upon application of its legislature.
Congress has passed statutory constraints on domestic deployment that go beyond what is required by the Constitution. These laws reflect a longstanding American wariness, dating back to the Declaration of Independence, around domestic use of the military. The Posse Comitatus Act, passed in 1878, is one such law. The Act prohibits using active-duty personnel to "execute the laws", barring federal troops from participating in civilian law enforcement except when expressly authorized by law. The Insurrection Act of 1807 is the primary exception to the Posse Comitatus Act, authorizing the president to deploy military forces inside the US to suppress rebellion or domestic violence, or to enforce the law in certain situations.
The Posse Comitatus Act does not apply to the Army National Guard or the Air National Guard under state authority, nor to the US Coast Guard. The National Guard has a unique structure, with both state and federal responsibilities, and can be controlled by either state or federal leaders depending on their deployment status. In State Active Duty (SAD) status, governors are largely free to use the Guard forces as they see fit, without the constraints of the Posse Comitatus Act.
The Insurrection Act has been invoked numerous times throughout American history, most recently in 1992 when the governor of California requested military aid from President George H.W. Bush in response to civil unrest in Los Angeles. The Act has also been used to justify the deployment of National Guard troops in Washington, D.C., in 2020 during racial justice protests, without statutory authorization.
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Exceptions to the Posse Comitatus Act
The Posse Comitatus Act (PCA) prohibits the use of federal military forces to enforce domestic policies within the United States. However, there are exceptions to this Act, which include:
The Insurrection Act
The Insurrection Act is considered the primary exception to the PCA. It allows the President to deploy the military to assist civilian authorities in law enforcement. This can include enforcing a federal court order, suppressing an uprising, or protecting a group of people's civil rights. The Insurrection Act does not, however, authorize martial law.
Statutory Exceptions
The PCA contains statutory exceptions that allow the President to use the military to suppress genuine rebellions and enforce federal civil rights laws. For example, the President may deploy the military to enforce federal law or suppress a rebellion against federal authority in a state.
National Guard Deployment
The PCA does not apply to the National Guard when acting under state authority. The National Guard may be deployed by the President for a federal purpose, but they are prohibited from providing "direct assistance" to civilian law enforcement.
Emergency Authority
The Department of Defense has claimed that the Constitution grants military commanders "emergency authority" to use federal troops to quell large-scale, unexpected civil disturbances when prior authorization by the President is impossible.
Other Laws
Other laws, such as the Stafford Act, permit the military to respond to natural disasters, public health crises, and similar events without violating the PCA.
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The National Guard
The US Constitution does not forbid military deployment within the US, but it does divide power over the military between Congress and the president, and the Third, Fourth, Fifth, and Sixth Amendments prevent abuses committed by the military against civilians. The Posse Comitatus Act, passed in 1878, also bars federal troops from participating in civilian law enforcement unless expressly authorised by law.
Governors may call up the National Guard for active duty to respond to domestic emergencies and disasters, such as hurricanes, floods, and earthquakes. They are also permitted to act in a law enforcement capacity within their home state or in an adjacent state if invited by that state's governor. For example, during the George Floyd protests in Washington, DC, in 2020, National Guard troops were called in to suppress protests.
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Frequently asked questions
No, the US Constitution does not forbid military deployment within the US. However, it vests authority over such deployments in Congress. The Posse Comitatus Act, passed in 1878, bars federal troops from participating in civilian law enforcement unless expressly authorized by law.
The Posse Comitatus Act is a law that bars federal troops from participating in civilian law enforcement except when expressly authorized by law. Passed in 1878, the Act was a response to the military occupation of the former Confederate States by the US Army during the Reconstruction period following the American Civil War.
Yes, there are several exceptions to the Posse Comitatus Act. One of the most important exceptions is the Insurrection Act, which allows the president to deploy the military to suppress an insurrection, enforce federal law, or protect civil rights in a state. Other exceptions include the use of the Army National Guard or Air National Guard under state authority, and the US Coast Guard, which is not covered by the Act due to its maritime law enforcement mission.
