Omar Bennett
The US Constitution grants Congress the power to raise and regulate armies and navies, including the ability to classify and conscript manpower for military service. The Posse Comitatus Act, a 143-year-old law, prohibits the use of the military as a domestic police force, except when expressly authorized by law. The Act embodies the American value of separating the military from civilian affairs to protect democracy and personal liberty. However, there are exceptions, such as suppressing rebellions and enforcing federal civil rights laws. The Constitution also outlines the rights of servicemen, with the Court of Military Appeals holding that servicemen are entitled to constitutional rights unless expressly excluded. Wartime constitutional rights are also addressed, with the Ex parte Milligan case underscoring that constitutional rights cannot be suspended during times of war. Additionally, the Constitution addresses the unique status of the military, including the necessity for obedience, discipline, and neutrality in political affairs.
| Characteristics | Values |
|---|---|
| Court's construction of the Federal Tort Claims Act | Does not reach injuries arising incidentally from military service |
| Congress's power | To determine age, compensation, and service of soldiers and seamen |
| Posse Comitatus Act | Prevents the president from using the military as a domestic police force |
| Fifth Amendment | Servicemen are entitled to all constitutional rights except those expressly or by implication inapplicable to the military |
| Military post regulations | Ban speeches and demonstrations of a partisan political nature |
| Military mobilization | Registration of males only for possible future conscription |
| Military necessity | Members of the armed forces must be ready at all times for worldwide deployment to a combat environment |
| Military law | Prohibits homosexual conduct |
| Military justice | Due process rights comparable to civilian procedures |
| Military support to law enforcement | Requires shifting from a more permissive, combat-centric “ROE mindset” to a more constrained, self-defense oriented “RUF mindset” |
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What You'll Learn
The Posse Comitatus Act
The Act was passed as an amendment to an army appropriation bill following the end of Reconstruction and the return of white supremacists to political power in the southern states and Congress. The 12 years of Reconstruction (1865-1877) following the American Civil War (1861-1865) saw the military occupation of the former Confederate States by the United States Army. In response, the Posse Comitatus Act prohibited the use of federal troops in civilian law enforcement, except when expressly authorized by law. This law embodies an American tradition that views military interference in civilian affairs as a threat to democracy and personal liberty.
The original Posse Comitatus Act referred only to the United States Army, but amendments have since expanded its scope to include the Air Force, Navy, Marine Corps, and Space Force. The Coast Guard, despite being part of the armed forces, is not included in the Act as it has explicit statutory authority to perform law enforcement duties. The National Guard, when under state control, is generally exempt from the Posse Comitatus Act and can engage in law enforcement if permitted by state law. However, when federalized, they become subject to the Act's restrictions.
While the Posse Comitatus Act aims to maintain civilian control over the military, there are statutory exceptions that allow the president to use military force in specific circumstances. The Insurrection Act, for example, authorizes the president to deploy the military to suppress an insurrection, enforce federal law, or protect civil rights in a state. Additionally, the Enforcement Acts have been used to justify sending federal troops to Little Rock, Arkansas, during the 1957 school desegregation crisis.
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Military as a domestic police force
The Posse Comitatus Act is a federal law in the United States that limits the power of the federal government in the use of federal military personnel to enforce domestic policies within the country. The Act, enacted in 1878, bars federal troops from participating in civilian law enforcement unless expressly authorized by law. The Act embodies an American tradition that views military interference in civilian affairs as a threat to both democracy and personal liberty.
The Posse Comitatus Act disallows the use of federal troops as a police force unless Congress overrides it or the use of force is expressly authorized by the Constitution. The Constitution does not provide for the military to be used as a police force in any capacity, and the Act operates as an extension of constitutional safeguards against such use. However, there are statutory exceptions to the Posse Comitatus Act that allow the President to use the military in certain situations. These exceptions include the Insurrection Act, which enables the President to deploy the military to suppress an insurrection in a state, enforce federal law, or protect civil rights when the state government is unable or unwilling to do so.
Despite these exceptions, the Posse Comitatus Act remains a crucial safeguard against the use of the military as a domestic police force. The Act has been updated several times to expand its scope and address dangerous gaps in its coverage. For example, in 2021, the National Defense Authorization Act further expanded the Act to cover the Navy, Marine Corps, and Space Force.
In recent years, there have been instances where the use of federal troops for domestic purposes has been considered. For example, during the George Floyd protests in Washington, D.C., in 2020, National Guard troops were called in to suppress the protests without invoking the Insurrection Act. This highlighted the need to close loopholes in the Posse Comitatus Act, such as transferring control of the DC National Guard from the President to the Mayor of Washington, D.C.
In conclusion, the Posse Comitatus Act plays a vital role in upholding the core American value of separating the military from civilian government affairs. While there are exceptions and loopholes in the Act, it continues to be a critical safeguard against the use of the military as a domestic police force, with Congress and the courts working to address any gaps in its coverage.
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Congressional power to conscript
The US Constitution gives Congress considerable powers to oversee the military and ensure its functionality. These powers are found in Article 1, which focuses on Congress and its role in government. This includes the power to provide for the common defense, declare war, raise and support an Army and Navy, make rules and regulations for the military, and purchase land for military bases.
Congress has the power to classify and conscript manpower for military service. In United States v. O’Brien, the Court, speaking through Chief Justice Warren, stated that "the power of Congress to classify and conscript manpower for military service is 'beyond question.'". The Court has specifically observed that the conscription act was passed "pursuant to" the grant of authority to Congress in clauses 12–14.
The Supreme Court's early decisions regarding war powers generally favored congressional control. The decisions emphasized Congress's power regarding when to go to war and the extent of wars. However, the balance of power between the executive and legislature has shifted over time. At times, the president has taken unilateral action, with Congress authorizing it afterward. In other cases, Congress has provided a different type of authorization that does not amount to a formal declaration of war but has the same effect.
Congress has declared war only 11 times throughout history, with the last declaration in June 1942. However, Congress has authorized military action or provided alternative forms of authorization for other military operations. In response to the president's use of military force without congressional approval, Congress passed the "War Powers Resolution," which modernized the declaration of war power and proscribed rules for the president's use of the military in combat.
Congress has also passed laws to support the transfer of troops to the United States, such as the "Act to recognize and adapt to the constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled and for other purposes, 29 September 1789." Additionally, Congress passes the Nation Defense Authorization Act (NDAA) annually, setting policy and funding priorities for the military.
Congress has the power to determine the age at which a soldier or seaman shall serve, the compensation allowed, and the service to which they shall be assigned. This power supersedes parents' control of minor sons needed for military service.
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Military justice
The military judicial system in the US is headed by the Judge Advocate General, a civilian who is part of the Ministry of Justice. Military crimes are handled by civilian courts that include military members. For example, a district court will have a civilian judge and two military members, one of whom is an officer, while the Supreme Court will have two officers of at least colonel's rank as members when handling military crimes.
The US military justice system recognizes the unique, separate status of the military as a "specialized community governed by a separate discipline from that of civilians." This recognition has been upheld in various Supreme Court cases, including United States v. O'Brien, which affirmed Congress's "broad constitutional power" to regulate the armed forces. The Court has also upheld the validity of military post regulations, emphasizing the necessity of obedience and discipline, military neutrality in political affairs, and the protection of troop morale.
In other countries, such as India, there have been calls for reform of the military justice system, with the existing system coming under increasing stress. The United Kingdom's military justice arrangements have a long history, dating back to the Articles of War, which were later added to the annual Army Act, the Naval Discipline Act, and the Air Force Act. In 1966, a process of harmonization began with the introduction of a quinquennial Armed Forces Act, and in 2006, the Armed Forces Act replaced separate service discipline acts as the system of law under which the Armed Forces operate.
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Constitutional rights in wartime
Wartime has often been used as a justification for the restriction of constitutional rights, particularly those of free speech.
During the Cold War, for example, legislation was passed to regulate and punish the activities of the Communist Party and its adherents. This was initially upheld, but later struck down as an infringement of the First Amendment. In this period, the Court also voided a law that made it illegal for members of a "communist-action organization" to work in a defence facility, citing the right to freedom of association.
During World War I, Schenck v. United States saw Justice Oliver Wendell Holmes declare that:
> [W]hen a nation is at war, many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.
This set a precedent for the restriction of free speech in times of war, with the Sedition Act of 1798 criminalizing the "writing, printing, uttering or publishing [of] any false, scandalous and malicious writing or writings about the government of the United States". This was used to prosecute newspaper editors such as Matthew Lyon, Benjamin Bache, and William Duane.
The pattern has been consistent in American history, from the Revolutionary War to the modern-day War on Terror. During World War I, Eugene V. Debs was imprisoned under the Sedition Act for giving an anti-war speech. Wartime has also been used to justify economic controls, such as rent control laws, which were upheld by the Court following World War I and World War II.
Despite these restrictions, constitutional rights are still expected to be observed during wartime. In a series of cases, the Court assumed that the power of Congress to punish seditious utterances in wartime is limited by the First Amendment. The Court of Military Appeals holds that servicemen are entitled to all constitutional rights, except those expressly or implicitly inapplicable to the military.
The Posse Comitatus Act is a key example of a law that upholds constitutional rights during wartime. The Act bars federal troops from participating in civilian law enforcement, embodying the American value that military interference in civilian affairs is a threat to democracy and personal liberty.
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Frequently asked questions
The Posse Comitatus Act is a 143-year-old law that bars federal troops from participating in civilian law enforcement without express authorisation.
The Constitution gives Congress the power to make rules for the governance and regulation of the land and naval forces. It also grants the President the power to use the military to suppress rebellions and enforce federal civil rights laws.
The President can use the military for domestic law enforcement in certain circumstances, such as when there is an insurrection in any state, or when unlawful combinations or assemblages make it impossible to enforce federal laws. However, this power is controversial and has been rarely invoked.
Servicemen and women are entitled to all constitutional rights except those expressly or implicitly inapplicable to the military. They are also granted due process rights comparable to civilian procedures under the Uniform Code of Military Justice.
