KNOW THE LAW

What is the Posse Comitatus Act”?

The Posse Comitatus Act is a federal law that prohibits federal troops from engaging in civilian law enforcement, with few exceptions. This includes the Army, Navy, Air Force, Marines, and Space Forces. These forces are trained to defend the Unites States against a foreign army.

The National Guard is exempt, because it is under the command of the governor of its state. But the National Guard can be federalized in the event of a national emergency, which then makes it subject to the Posse Comitatus Act.

Enacted in 1878 after Reconstruction, the Act was designed to prevent military involvement in domestic affairs without explicit authorization from Congress or the Constitution. The law reflects a long-standing American principle of keeping military power separate from civilian governance.

The term posse comitatus comes from British and early American law, and it refers to a group of civilians mobilized by a local law enforcement officer to aid in pursuing and arresting lawbreakers in the community, just like in those old Westerns, when the sheriff gathers a “posse” to pursue the outlaws.

To learn more: https://www.brennancenter.org/our-work/research-reports/posse-comitatusact-explained

WHY DOES THIS MATTER?

It is important to understand that the Posse Comitatus Act prohibits using active-duty personnel to “execute the laws”; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to domestic law enforcement. Because the Act requires explicit authorization from Congress or the Constitution, enacting the Posse Comitatus Act by an executive order of the president is contrary to states’ rights and protections under the Constitution.

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