Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Passage of the PCA: Reaffirmation of a Long-Standing American Tradition

 

Syllabus
Resources
Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

 Matthew Carlton Hammond

excerpted from:  Matthew Carlton Hammond, The Posse Comitatus Act: a Principle in Need of Renewal , 75 Washington University Law Quarterly 953-984 (Summer 1997)

The hotly contested presidential election of 1876 directly led to the passage of the PCA,(1) but the principle behind the Act--excluding the military from the civilian sphere--is as old as the United State(2) Since the writing of the Declaration of Independence, Americans have mistrusted standing armies and have seen them as instruments of oppression and tyranny.(3) Over time, the military has increased its esteem among the populace, but it has always been held separate from civilian government and limited to its focussed goal of military preparedness and national securit(4)

This antimilitarism bent of the United States is evident in our foundation documents.(5) The Declaration of Independence decries King George III's use of armies "to compleat works of death, desolation and tyranny . . . totally unworthy . . . of a civilized nation(6) Specifically, the Signers of the Declaration of Independence attacked the keeping of a standing army in time of peace,(7) the military's independence from the civil control(8) and the quartering of troops among the population of the colonies. (9)

In response to these concerns, the Articles of Confederation limited the role of the militar(10) Specifically, they restricted the raising of armies and the maintaining of naval vessels.(11) They also reserved the appointment of officers, other than the rank of general, to the states, thus lessening the central government's control over the militar(12) In addition to establishing a weak central government, the Articles of Confederation's reliance upon militia for military power was inadequate to meet the needs of the nation.(13)

In the Constitution, the Founding Fathers mandated civilian control of the military through the government structur(14) While allowing for a standing army and the maintenance of a navy,(15) the Constitution restricts military appropriations to two year(16) designates the President as the Commander-in-Chief, thereby subordinating the military to civilian authority;(17) and empowers Congress to regulate the armed force(18) Additionally, the Bill of Rights proscribes the peacetime quartering of soldiers in private homes(19) and provides for the states to have a well-regulated militia as a counterbalance to a national arm(20)

Fear of a standing army helped to motivate the enactment of the Bill of Rights beyond the specific amendments relating to the military.(21) By guaranteeing individual rights in the First Amendme(22) and freedom from unreasonable search and seizure in the Fourth Amendment,(23) it was that the abuses of the British army could be prevented in the new republic(24) The Founding Fathers recognized that the military's authoritarian nature, while effective in defending democracy, remains antithetical to the basic tenets of democracy.(25) According to this reasoning, "[s]kepticism and criticism" of the military are "absolute requisites of freedom" that are missing from every unfree natio(26)

Fear of the military seemed to have been forgotten until the mid-1800s, when the events leading up to enactment of the PCA began prior to the Civil War. The Fugitive Slave Act of 1850 allowed federal marshals to call on the posse comitatus to aid in returning a slave to his owner.(27) In the context of the Fugitive Slave Act, Attorney General Caleb Cushing issued an opinion defining the posse comitatus to include the military even if entire units had to be called upon while remaining under the direction of their own officer(28) This use of the military by federal marshals became common; in Kansas, for example, federal troops were used to quell disorder between pro- and anti-slavery factions.(29)

The post-Civil War military presence in the South continued to foment a distaste for military involvement in the civilian spher(30) The military presence was necessary to support the Reconstruction governments installed in the South,(31) but the situation came to a head during the 1876 presidential election, which was determined by only one electoral vote(32) In the election, Rutherford B. Hayes won with the disputed electoral votes of South Carolina, Louisiana, and Florida.(33) In those states, President Ulysses S. Grant had sent troops as a posse comitatus for federal marshals to use at the polls, if necessar(34) This misuse of the military in an election--the most central event to a democracy--led Congress to enact the PCA in 1878.(35)

Read the Following Links:
Up
Passage of the PCA: Reaffirmation of a Long-Standing American Tradition
The Scope of the PCA
Exceptions to the PCA Endanger the Military and the United States
Renewal of the Policy Embodied by the PCA

 

1. . See infra note 49-51 and accompanying text.

2. . See supra note 13 and infra notes 20-43 and accompanying text. "[M] emories of the arrogance of the British Army" fueled the early controversy over the military. M.E. Bowman, The Military Role in Meeting the Threat of Domestic Terrorism, 39 Naval L. Rev. 209, 211 (1990

3. . The Declaration of Independence eloquently expressed this mistrust:

He has erected a multitude of New Offices, and sent hither swarms of Officers, to harass our People, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States:

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

The Declaration of Independence paras. 12-19 (U.S. 1776).

4. . See PCA Hearing, supra note 13, at 15 (statement of William Howard Taft IV, Gen. Counsel, U.S. Dep't of Defense); Andrew J. Goodpaster & Samuel P. Huntington, Civil-Military Relations 9-11 (1977); cf. Letter from Larry L. Simms, Deputy Asst. Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Rep. L.A. "Skip" Befalis 4-5 (Aug. 6, 1979) (noting that because "the primary mission of the Navy is to be the instrument of seapower in the national defense," it should not become involved in interdiction efforts despite the lack of a PCA bar to such involvement), reprinted in PCA Hearing, supra note 13, at 523, 526-2

5. . See generally U.S. Const.; Articles of Confederation, 1 Stat. 4 (U.S. 1778) (superseded by U.S. Const.); The Declaration of Independence (U.S. 1776).

6. . The Declaration of Independence para. 15 (U.S. 1776

7. . Id. para. 13 ("He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature.").

8. . Id. para. 14 ("He has affected to render the Military independent of and superior to the Civil Power."

9. . Id. para. 15 ("For quartering large bodies of armed troops among us: For protecting them, by mock Trial, from Punishment for any Murders which they sould commit ....").

10. . Articles of Confederation arts. 6, 4,5, 1 Stat. 4, 4-5 (U.S. 1778); id. art. 7, 1 Stat. at

11. . Id. art. 6, 4-5, 1 Stat. at 4-5.

No vessels of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only, as in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies ...: nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, ... unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

Id.

12. . Id. art. 7, 1 Stat. at 5.

When land-forces are raised by any State for the common defence, all officers of or under the rank of colonel, shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

I

13. . John A. Hardaway, Colonial and Revolutionary War Origins of American Military Policy, Mil. Rev., Mar. 1976, at 77, 81.

14. . J. Bryan Echols, Open Houses Revisited: An Alternative Approach, 129 Mil. L. Rev. 185, 200 (1990

15. . U.S. Const. art. 1, 8, cls. 12-13.

16. . Id. art. 1, 8, cl. 12 ("The Congress shall have Power ... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ...."). However, appropriations for the Navy are not similarly limited. See id. cl. 13 ("To provide and maintain a Navy ...."). The failure to limit navy appropriations follows from the failure to mention the navy as an evil in the Declaration of Independence. See supra note 20. Indeed, navies were seen as instruments of the great powers and were not thought to be a threat to civil supremac

17. . U.S. Const. art. 2, 2 ("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 ....").

18. . Id. art. 1, 8, cl. 14 ("To make Rules for the Government and Regulation of the land and naval forces."). The Constitution preserves the right of states to appoint officers for their militias, but limits the states' authority by requiring militia training to conform with Congress's requirements. Id. cl. 16; cf. The Articles of Confederation art. 7 (U.S. 1778) (as discussed supra notes 27-30 and accompanying text

19. . U.S. Const. amend. III ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."). For a discussion of the history and purpose of the Third Amendment, see William Sutton Fields, The Third Amendment: Constitutional Protection from the Involuntary Quartering of Soldiers, 124 Mil. L. Rev. 195 (1989).

20. . U.S. Const. amend. II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

21. . See Peter M. Sanchez, The "Drug War": The U.S. Military and National Security, 34 A.F. L. Rev. 109, 117 (1991) ("Despite [Alexander] Hamilton's assurances [in response to public fears regarding a national army], the Constitution was only ratified after Federalists agreed to incorporate the Bill of Rights." (quoting W. Peters, A More Perfect Union 231-37 (1987))).

22. . U.S. Const. amend.

23. . Id. amend. IV.

24. . See Sanchez, supra note 38, at 118 (mentioning the belief that the Bill of Rights "would effectively preclude the new government from usurping the rights of citizens, whether by military or other means"

25. . See The Federalist No. 41, at 258-60 (James Madison) (Clinton Rossiter ed., 1961); see also Dunlap, supra note 4, at 388 ("[T]he military is the antithesis of democracy." (footnote omitted)); Hardaway, supra note 30, at 80 (Colonial feeling was that a standing army "was simply incompatible with a democratic system of government."). "The ideals of liberty, democracy, equality, and peace have contrasted with the military's concern with authority, hierarchy, obedience, force, and war." Goodpaster & Huntington, supra note 21, at 7. "It ill behooves a democracy to become over-fond of its soldiery," said one Founding Father. DeWitt C. Smith, Jr., From Yesterday's Fears to Today's Realities, Parameters, Fall 1977, at 90, 90.

The Founding Fathers' fear of a standing army is also evident in the constitutions of the thirteen original states, which note that standing armies are "dangerous." See, e.g., N.H. Const. pt. 1, art. 25 ("Standing armies are dangerous to liberty, and ought not to be raised, or kept up, without consent of the legislature."); Va. Const. art. 1, 13 ("[S] tanding armies, in time of peace, should be avoided as dangerous to liberty; and ... in all cases the military should be under strict subordination to, and governed by, the civil power."); see also H.W.C. Furman, Restrictions upon Use of the Army Imposed by the Posse Comitatus Act, 27 Mil. L. Rev. 85, 92 n.41 (1960).

26. . See Smith, supra note 42, at 9

27. . See Act of Sept. 18, 1850, ch. 60, 9 Stat. 462, 462-63. See supra note 11 for the definition of posse comitatus.

28. . Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 473 (1854

29. . Furman, supra note 42, at 93.

30. . See Lorence, supra note 11, at 16

31. . See id. The military support of these governments was described as a "rotten-borough or carpet-bag system." G. Norman Lieber, U.S. War Dep't, Office of the Judge Advocate Gen., Doc. No. 64, The Use of the Army in Aid of the Civil Power 10 (1898) (quoting Rep. J.D.C. Atkins).

In the Reconstruction South a monumental task faced the military:

Unplanned and aimed not at eradicating states but at hurrying their return to the Union ..., [the Military Reconstruction Laws] one way or another imposed on the Army the duties of initiating and implementing state-making on the basis of biracial citizen participation. Protecting the personnel of the federal courts and Freedman's Bureau, shielding blacks and whites who collaborated in the new order of equality under state law from retaliations by indignant vigilante neighbors, and monitoring the quality of daily marketplace justice in ten thousand villages--these were tasks that West Point had not prepared Army officers to perform.

Harold M. Hyman, Ulysses Grant I, Emperor of America?: Some Civil-Military Continuities and Strains of the Civil War and Reconstruction, in The United States Military Under the Constitution of the United States, 1789-1989, at 175, 186 (Richard H. Kohn ed., 1991) [hereinafter U.S. Military Under the Constitution].

The size of the standing army increased in post Civil War America. Emory Upton, The Military Policy of the United States (1881) (unpublished manuscript) (see tables and charts), reprinted in S. Doc. No. 379, 1st Sess. (1916). With its increased size and permanence, the army began transforming itself into a professional army. See id. With a standing army of significant size, the PCA became even more important as a limit on the role of the military in society and as a shield from improper requests by civilian authorities. See PCA Hearing, supra note 13, at 38-39 (statement of Christopher H. Pyle, Professor, Mount Holyoke College).

32. . Furman, supra note 42, at 94; Lorence, supra note 11, at 173-7

33. . See Lorence, supra note 11, at 172-74.

34. . Furman, supra note 42, at 94-95, 94 & nn.56-57; Lorence, supra note 11, at 17

35. . Furman, supra note 42, at 94-96; see also Lieber, supra note 48, at 10-12; Lorence, supra note 11, at 174-79; cf. Federal Document Clearing House, Buyer Offers Amendment to Anti-terrorism Legislation; Limits and Clarifies Role of Military, Gov't Press Release, June 14, 1995, available in 1995 WL 14249788 (suggesting that the PCA was also passed to prevent the use of troops to quell labor disputes).

Grant's improper actions finally pushed the PCA through after several prior defeats. The original text of the PCA read as follows:

From and after the passage of this act 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; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.

Army Appropriations Act, ch. 263, 15, 20 Stat. 145, 152 (1878). Congress adopted the modern text of the PCA, see supra note 12, in 1956. See An Act to Codify Title 10 and Title 32, ch. 1041, 18(a), 70A Stat. 1, 626 (1956) (codified as amended at 18 U.S.C. 1385 (1994)). The modern text was meant "to restate, without substantive change, the law replaced." Id. 49(a), 70A Stat. at 640.

In 1866, prior to the passage of the PCA, the Supreme Court cast doubt on the use of the military to enforce the laws in place of civilian authorities, even in a time of stress. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

 
 
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