ACLU: Misconception of the Posse Comitatus Act

This article contains commentary which reflects the author's opinion
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ACLU: Progress Interrupted

With the riots across the country entering their 6th day, President Donald Trump has indicated that he will be using regular United States Military forces to stop looting, preserve order, and to protect peaceful protestors in the wake of the George Floyd Police killing. Before the speech was complete, tweets, texts, and news reports abounded that under the Posse Comitatus Act (which is now 18 U.S. Code §1385) the President is acting illegally in doing so. There are many speculations as to why this false information was being circulated, including by the ACLU.

It could be because the ACLU makes its money off civil rights cases whether they win or lose (they get paid with taxpayer dollars under the 1969 Act). It could be the Democrat party and their media allies are desperate for another chance to impeach the president. Or it could be that all of the internet “medical experts” for Corona and “Specialized Entomologist” for the Murder Hornets have now become armchair legal scholars.

Fortunately for the United States, the ACLU analysis is wrong. The law known as 18 U.S. §1385 states, “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the 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 part which media commentators are fixating upon is the last section, the fining or imprisonment of the person who uses the military for domestic purposes.

However, in doing so, they completely ignore the dominant conditional clause, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress…” This willful ignorance of this passage indicates a politically or interest-driven motivation of the law, rather than a legal one. This is quite similar to the inability of many on the left to understand, “Shall not be infringed.”

ACLU Forgets Constitutional Authority

The first condition in which the President may act under the Posse Comitatus Act is a Constitutional Requirement. The Constitution is very explicit on the powers of the President of the United States in relation to the Military, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…” Times of actual service to the United States include, “the United States and its territories being invaded or threatened with invasion by a foreign enemy, a revolt or threats of revolt against the U.S. government or the president, and a need for extra manpower to enforce executive laws.”

Examples of this are, “deployment to Iraq or Afghanistan, border patrol missions, special duties during terror alerts and national emergencies, such as Hurricane Katrina.” In the present case, a strong argument can be made that the President has the authority to call up the national guard in response to his two stated conditions in this matter. First, it is not difficult to categorize the riots as insurrections, regardless of what ACLU calls them.

“That, whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of congress…” or event revolt against the United States. Under such conditions, the President has the Constitutional Authority to Implement the Posse Comitatus, much to ACLU’s chagrin.

Court Authority

Additionally, in Ex Parte Milligan (71 US 2 [1866]), the court ruled that Martial Law, with exceptions, was not only allowed but also necessary when civilian authorities could not maintain rights. Under the ruling in Mayer v. Peabody (212 U.S. 78 [1909]), the courts held that: 1.) the Government must have a valid reason to imply insurrection exists (ie. Looting, assaulting peace officers, burning government buildings and private buildings, ect); and 2.) that arrests and legal suspensions must be made in good faith by the person commanding or doing the action (in this case the president).

This standard was made stricter by Sterling v. Constantine (287 U.S. 378 [1932]) which states this power is not limitless and there needs to be a direct correlation or empowerment by Congress for such actions, vis a vis the Insurrection Act. There is an apparent argument that when there are pallets of bricks and other objects to be thrown “delivered” to flashpoints at riots, there is a direct correlation to an outside authority aiding the insurrection, thus the direct relation test may not even be needed in this case.

Authority Granted By Congress

Even if a 9th Circuit Court did not see the Constitutional Authority of the President to activate the Military to protect the United States during these riots, the action passes the second test of 18 U.S. §1385 because of the Insurrection Act. While several news outlets have falsely claimed that the Posse Comitatus Act repeals the Insurrection Act because it is later in time (if they were contradictory this would be true), the Posse Comitatus Act specifically makes allowances for actions by the President under an Act of Congress, i.e. the Insurrection Act.

The Insurrection Act States, “Whenever the President considers 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, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.” Sheperdized, this Act is still valid.

Under the current situation, the Police are overrun in many cities, as shown by police stations in Minneapolis and New York being attacked. Further, the judiciary is unable to function in cities around the country, most evident in Tennessee where the courthouse was burned in Nashville. This is a clear state of “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” Under which, the Insurrection Act activates. The activation of the Insurrection Act activates the second condition in the dominant conditional clause in 18 U.S. §1385, which allows for the calling up of the military in this specific situation.

Clear and Present Danger

While people have the right to grieve, even protest the killing of George Floyd, agitators from hate groups, right and left, need to be stopped. They are in open rebellion against the United States of America. Regardless of your belief in the need for social change, this open rebellion is dangerous to all people of the United States. The ACLU should recognize this.

Civilized people can agree that what happened to George Floyd was wrong. We can agree police who murder must be stopped. However, we also must agree that rioters must be stopped. These rioters have destroyed the livelihoods of so many mostly minority businesses. This is a clear and present danger to the United States of America.

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Dr. Christopher W. Smithmyer

Dr. Christopher W. Smithmyer

Dr Christopher Smithmyer is the Vice President of International Affairs at Brav Online Conflict Management and an Adjunct Professor of MBA Business at Doane University. He is also part of the founding team at BlackWalletLTD, one of the leaders in stable coin 2.0 ecosystem maintenance. Dr. Smithmyer’s focus is international business and finance, along with reviews of board games, weapons platforms, and survival items.

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