How happy that our army had been recently disbanded [before the Presidential crisis of 1801]! What might have happened otherwise seems rather a subject of reflection than explanation.
~ Thomas Jefferson writing to Nathaniel Miles, March 1801
Posse Comitatus: the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases as to aid him in keeping the peace, in pursuing and arresting felons, etc.
~ Black's Law Dictionary
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or 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.
~ The Posse Comitatus Act, 18 U.S. Code, Section 1385
The average American is likely to think that "posse comitatus" is the entourage of a top rapper or NBA star. Little do they know (or likely care to know) that The Posse Comitatus Act of 1878 has done more to preserve their liberty than any piece of legislation since the Bill of Rights.
Born of the abuses of the Reconstruction era and the stolen election of 1876, the PCA prohibits the use of federal troops (or national guardsmen under federal control) unless specifically authorized by an act of Congress. In short, it is the main obstacle in the path of creating an American police state. Therefore it is not surprising that there has been an increase in "chatter" about scrapping the law.
A trial balloon was floated over three years ago when both Senator Joseph Biden, who called the PCA into question as early as the Oklahoma City bombing of 1995, and then Homeland Security Czar Tom Ridge bandied about the idea of repealing the PCA on the Sunday morning news programs. Apparently, the pretext of keeping Americans safe from terrorists wasn't deemed sturdy enough to accomplish the coup d'état. But where the stick of "national security" was found wanting, now the carrot of "disaster relief" may provide the cover needed to expose Americans to the full power of centralized federal tyranny.
In the wake of Hurricane Katrina, Senator John Warner has asked Defense Secretary Donald Rumsfeld to review the usefulness of the PCA given that it hinders "humanitarian assistance" which could be provided by the feds. (Look next for foxes to be asked their opinions on the benefits of chicken coop doors.) Not coincidentally, President Bush has called for "a robust discussion about the best way for the federal government, in certain extreme circumstances, to be able to rally assets for the good of the people."
What this "robust discussion" will most certainly entail is a media show trial. Congressional leaders will set up the false dialectic between those who want to abolish the PCA and those who think that such an abolition would be "rash and uncalled for" when the PCA merely needs to be amended. Needless to say, this "tweaking" will allow enough ambiguity in the reading for the federal judiciary to eviscerate the PCA and free the leviathan.
While there is no appreciable amount of case law on the PCA yet formed, the methods and tactics that a statist court will employ are already clear. Technically, the PCA applies only to the Army and Air Force, not the Navy and Marine Corps. The latter two armed services are restricted only by Defense Department regulations. (Likewise, the Coast Guard formerly of the Department of transportation, now with Homeland Security is exempt.) So, under the guise of strict textualism, a court could easily find the policing of Americans by scores of Marines constitutional. Add to this a 1981 amendment to the PCA which freed up the use of the military in the war on drugs and the loopholes which can be created are multifarious.
The direction of the existing case law on the PCA does not bode well for its future either. Originally, the standard used for violation of the Act was an active versus passive test wherein the military could not actively police U.S. citizens but it could provide equipment and supplies to law enforcement. (See United States v. Red Feather, 392 F. Supp. 916, D.S.D. 1975). However, a new test emerged which looks to whether "military personnel subjected . . . citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature." (See United States v. McArthur, 541 F.2d 1275, 1278, 8th Cir. 1976). Mind you, defining who is a "citizen" and what is "regulatory, proscriptive, or compulsory in nature" will most likely fall under the direction of a man who has no problem with ceding immense, unprecedented, and dangerous powers to the president.
Given that any public discourse about the siccing of military forces on American civilians involves the use of two Latin words, the smart money should not be on the side of liberty. A majority of Americans have grown apathetic and stupid as a result of big government handouts and (mis)education. While some may have been leery to repeal the funny sounding law in the name of terror prevention, there will likely little resistance to "amending" the law so that the government can "help people." Little do they think of past "helps" from "40 acres and a mule" up through the entire bungled Katrina relief effort.
But just as Jefferson was prescient that the use of troops by a sitting president could effectively rig an election (as happened in 1876), so he also noted that "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."
September 28, 2005
C.T. Rossi [send him mail] is a recent law school graduate who lives in Washington, D.C.