Military Power in Law Enforcement: The Posse Comitatus

SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United 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 or Territory 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.”

“The President, by using the militia or the armed forces, or both . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) 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 . . . .”748

These quoted provisions of the United States Code consolidate a course of legislation that began at the time of the Whiskey Rebellion of 1792.749 In Martin v. Mott,750 which arose out of the War of 1812, the Court held that the authority to decide whether the exigency had arisen belonged exclusively to the President.751 Even before that time, Jefferson had, in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering “all officers having authority, civil or military, who shall be found in the vicinity” of an unruly combination, to aid and assist “by all means in their power, by force of arms or otherwise” the suppression of such combination.752 Forty-six years later, Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States had authority when opposed by unlawful combinations to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both state militia and United States officers, soldiers, sailors, and marines,753 a doctrine that Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the posse comitatus. Lincoln’s call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson’s conception of a posse comitatus subject to presidential call.754 The provisions above extracted from the United States Code ratified this conception with regard to the state militias and the national forces.

748 10 U.S.C. §§ 332, 333. The provisions were invoked by President Eisenhower when he dispatched troops to Little Rock, Arkansas, in 1957 to counter resistance to Federal district court orders pertaining to desegregation of certain public schools in the Little Rock School District. Although the validity of his action was never expressly reviewed, the Court, in Cooper v. Aaron, 358 U.S. 1, 4, 18–19 (1958), rejected a contention advanced by critics of the legality of his conduct, namely, that the President’s constitutional duty to see to the faithful execution of the laws, as implemented by the provisions quoted above, does not permit the use of troops to enforce decrees of federal courts, because the latter are not statutory enactments, which alone are comprehended within the phrase, “laws of the United States.” According to the Court, a judicial decision interpreting a constitutional provision, specifically “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case [Brown v. Board of Education, 347 U.S. 483 (1954)] is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States . . . .”

749 1 Stat. 264 (1792); 1 Stat. 424 (1794); 2 Stat. 443 (1807); 12 Stat. 281 (1861); now covered by 10 U.S.C. §§ 332–334.

750 25 U.S. (12 Wheat.) 19 (1827).

751 25 U.S. at 31–32.

752 Wilson, Federal Aid in Domestic Disturbances, S. Doc. No. 209, 57th Congress, 2d Sess. (1907), 51.

753 6 Ops. Atty. Gen. 446 (1854). By the Posse Comitatus Act of 1878, 20 Stat. 152, 18 U.S.C. § 1385, it was provided that “it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress. . . .” The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General “that by Revised Statutes 5298 and 5300 [10 U.S.C. §§ 332, 334] the military forces, under the direction of the President, could be used to assist a marshal. 16 Ops. Atty. Gen. 162.” B. Rich, The Presidents And Civil Disorder 196 n.21 (1941).

754 12 Stat. (app.) 1258.