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 fundamental precept of maintaining the separation between the military and civilian spheres of acti⁽¹⁾ must be renewed, not eroded by exceptions. Both exceptions-in-name and exceptions-in-fact should be avoided because they injure that separation.⁽²⁾ To maintain the principle that animates the PCA, the PCA should be reaffirmed and strengthened. Below are three possible approaches.

One approach is to do nothing, but to do nothing would only leave the situation in its current unacceptable state. The military is seen as a panacea to many domestic problems that do not properly fall within the military sphere. Congress may resolve to leave the PCA alone, but it should be remembered that in 1878 the PCA was enacted precisely because the government had to be reminded of the fundamental principle of separating the military from the civilian spher⁽³⁾ The need to remind, or re-remind, government of that fundamental principle exists today.

Another approach is to amend the Constitution, but this is less appealing than the first approach. A constitutional amendment by its very nature would strengthen the principle of excluding the military from the execution of civilian laws, but it is inflexible. In this case, a constitutional amendment would limit the powers of the President by limiting his authority as Commander-in-Chief and executor of the laws.⁽⁴⁾ If these powers are qualified by Congress, as some commentators suggest⁽⁵⁾ then the amendment would only add inflexibility to the Constitution, thereby weakening one of its greatest assets.⁽⁶⁾ Normally, the "twilight zon⁽⁷⁾ of Presidential power provides enough flexibility to allow the United States to best meet the uncertainties of the future. A constitutional amendment would remove the "twilight zone" with respect to military use. It might be possible to amend the Constitution to allow nonmilitary use of the military through the exercise of emergency powers, but the resulting amendment would still create a fixed standard that might not foresee some future event, making it unacceptable.⁽⁸⁾ Additionally, a constitutional amendment should not be enacted unless absolutely necessary for the functioning of our government or societ⁽⁹⁾

The third and best approach, is a legislative reaffirmation of the fundamental principle behind the PCA with added guidelines to help focus considerations of PCA exceptions. Legislative action refocusses the debate on the use of the military from the pressing problems into which they may possibly be drawn and retains the flexibility that a constitutional amendment would remove. Additionally, the legislative solution maintains flexibility yet Congress and the President remain constrained by public opinion in their use of the military.⁽¹⁰⁾ This Note proposes that Congress repeal the PCA in Title 18 and enact the following statute in Title 10:

(a) Any part of the armed force⁽¹¹⁾ excluding the Coast Guard, is prohibited from acting as a posse comitatus or otherwise to execute the laws, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.⁽¹²⁾

(b) Exceptions to paragraph (a) allowing use of the armed forces must meet the following criteria:

(1) the use must be triggered by an emergency, which is defined as any occasion or instance for which Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrop⁽¹³⁾ --generally a sudden, unexpected event;⁽¹⁴⁾

(2) the use must be beyond the capabilities of civilian authorities; and

(3) the use must be one limited in duration and not one which addresses a chronic, continuing issue or problem.

(c) Clarifications to prohibitions in subsection (a) are to be made by regulations to be published in the Federal Register and printed in the Code of Federal Regulations.

(d) This section is an affirmation of the fundamental precept of the United States of separating the military and civilian spheres of authority.

(e) Nothing in this section shall be construed to affect the law enforcement functions of the United States Coast Guard.

First, a repeal of the PCA in Title 18, Crimes and Criminal Procedure, and recodification into Title 10, Armed Forces, would bring the law into line with its current function and force. The PCA is a law of policy, both in application and political discourse. The total lack of prosecutions under the PC⁽¹⁵⁾ causes the law to lack force and credibility, because the crime is going unpunished. Recodification recognizes the law as a limitation on the use of the military without losing credibility due to the lack of enforcement. Additionally, other criminal statutes would cover misappropriation of military services,⁽¹⁶⁾ or Congress could modify them to cover activity prohibited by the PCA. The 94th Congress considered such a recodificatio⁽¹⁷⁾

The general language in subsection (a) of the proposed law would be substantially similar to the current wording of the PCA.⁽¹⁸⁾ This language leaves some of the ambiguity and vagueness in the law, which in turn leaves intact the flexibility of the current law and clearly marks it as a continuation of the PCA. Past interpretations of the PCA would therefore apply equally to the proposed law as they do to the current law.

However, one significant change in the language extends the principle of the PCA to the Navy and Marine Corps by reference to "the armed forces." This extension broadens the language of the P⁽¹⁹⁾ and makes the current policy--as it is evinced by Department of Defense regulations--law, thereby erasing a meaningless distinction.⁽²⁰⁾ By codifying the DoD regulations, any change would require congressional approva⁽²¹⁾ The Coast Guard is explicitly excluded from the proposal in both subsections (a) and (d) to leave their current law enforcement responsibilities intact.

The criteria for exceptions creates a structure for considering what exceptions to the PCA are proper. In subsection (b), the proposed basic criteria for exceptions is an emergency of limited duration and a nonchronic nature that is beyond the capabilities of civilian authorities.⁽²²⁾ The purpose of such criteria is to keep the military from getting drawn into a substantial, long-term, and distracting role, such as involvement in drug interdiction activities. The emergency requirement recognizes the importance of the separation of military and civilian spheres by stating that anything less will not involve the military. An emergency also suggests something more than an ordinary occurrence, which further ties in the notion of a nonchronic problem requiring a limited time commitment. The military should be used as a stop-gap, not as a permanent or regular solution to a problem⁽²³⁾ Requiring the problem to be beyond the capabilities of civilian authorities forces the military to stay out of matters that can otherwise be handled by the proper authorities⁽²⁴⁾ and will encourage the development of those authorities' capabilities to deal with chronic, nonemergency problems.

The framework of this proposal would allow exceptions for civil disturbances, insurrection, strike replacement, and disaster relief, because all are limited in scope, require resources usually beyond local authorities, and would by nature be emergencies. The use of troops for border duty would fail under all three requirements because no emergency is occurring, involvement is not of limited duration, and customs and immigration problems are not beyond the capabilities of immigration authorities. The counter-drug exception also fails under all three criteria, particularly because it involves no emergency and is not of limited duration. The investigative support exception for weapons of mass destruction fails under the limited-duration and capabilities-of-civilian authorities criteria, but like the PCA, the proposal does not prohibit investigatory support.

The requirement of regulations to clarify the law lessens the need for exceptions-in-name while providing military commanders with guidance. One of the reasons Congress passed the counter-drug exception was that the military commanders lacked guidance. The inclusion of clarifying regulations in the Code of Federal Regulations delineates the acceptable uses of the military and promotes public discourse about the appropriateness of these uses.

VI. Conclusion

The Departments of Justice and Defense got it right as recently as 1979:

The [PCA] expresses one of the clearest political traditions in Anglo- American history: that using military power to enforce the civilian law is harmful to both civilian and military interests. The authors of the[ [PCA] drew upon a melancholy history of military rule for evidence that even the best intentioned use of the Armed Forces to govern the civil population may lead to unfortunate consequences. They knew, moreover, that military involvement in civilian affairs consumed resources needed for national defense and drew the Armed Forces into political and legal quarrels that could only harm their ability to defend the country. Accordingly, they intended that the Armed Forces be used in law enforcement only in those serious cases to which the ordinary processes of civilian law were incapable of respondin⁽²⁵⁾

The need to fight "the war" on drugs, to combat terrorism, and to deter illegal immigration are long-term problems that are currently high on the public agenda and will not go away without long-term solutions. Tight budgets and the desire for a quick-fix do not create an emergency justifying the conversion of martial rhetoric to reality. Relegating these problems to a military solution poses dangers to our individual rights and to the history and underlying structure of the United States that should not be ignored.

Resources must be made available to create viable civilian law enforcement responses to these problems. If these resources must be redirected from the military, then Congress should do so. Declare "war," but let it be fought by civilian law enforcement with the right weapons for the job. The military should be the last resort, not the first solution. In the long run, the "war" will be more effectively fought with dedicated "soldiers" with an undivided focus.⁽²⁶⁾

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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 supra Part I

2. . See supra Part IV.

3. . See supra notes 47-52 and accompanying tex

4. . See supra notes 110-13 and accompanying text.

5. . See supra note 111 and accompanying tex

6. . See Kathleen M. Sullivan, Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever, 17 Cardozo L. Rev. 691, 700 (1996). "It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." Id. (quoting McCullogh v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (Marshall, C.J.)).

7. . See supra note 113 and accompanying tex

8. . See Sullivan, supra note 188, at 700-01.

9. . See generally Sullivan, supra note 188 (discussing arguments against constitutional amendments in general); cf. Ronald L. Goldfarb, The 11,000th Amendment: There's a Rush to Amend the Constitution, and It Shows No Signs of Letting Up, Wash. Post (Nat'l Weekly Ed.), Nov. 25-Dec. 1, 1996, at 22, 22-23 (noting that over 11,000 amendments have been proposed in Congress since 1789--more than one a week). As Professor Kathleen Sullivan has said, "[T]here are strong structural reasons for amending the Constitution only reluctantly and as a last resort. This strong presumption ... has been bedrock in our constitutional history, and there is no good reason for overturning it now." Sullivan, supra note 188, at 69

10. . See Goodpaster & Huntington, supra note 21, at 26.

11. . Title 10 defines the term "armed forces" to "mean the Army, Navy, Air Force, Marine Corps, and Coast Guard." 10 U.S.C. § 101(a)(4) (1994

12. . See supra text accompanying note 12 for the current text of the PCA and note the use of the same phrasing.

13. . This definition is taken nearly verbatim from 42 U.S.C. § 5122(1) (1994) (regarding disaster relief

14. . This language is derived from 15 U.S.C. § 2655(c) (1994).

15. . See supra note 53 and accompanying tex

16. . The statutes that currently cover embezzlement or misappropriation of federal services, funds, or equipment would fill the void left by repeal of the PCA from Title 18.

17. . See S. 1, 94th Cong. 1st Sess., tit. II, pt. G. The text of the bill proposed the following text as a re-enactment of the PCA in 10 U.S.C. § 127:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, knowingly uses any part of the Army, Navy, or Air Force as a posse comitatus or otherwise to execute the laws is guilty of a Class A misdemeanor. Nothing in this section shall be construed to affect the law enforcement functions of the United States Coast Guard.

Id., cited in James P. O'Shaughnessy, Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 711 n.43 (1976

18. . See text accompanying supra note 12.

19. . See supra notes 66-67 and accompanying text. The 94th Congress also considered similarly broadening the coverage of the PCA. See supra note 20

20. . See supra note 68 and accompanying text.

21. . A regulation that is not codified does not require congressional approval to be changed. Cf. supra note 68 (noting the withdrawal of a section similar to the DoD Regulations from the Code of Federal Regulations presumably to make the regulations easier to change

22. . A similar proposal was made by Professor Christopher Pyle. See PCA Hearing, supra note 13, at 42.

What is at stake is nothing less than a consistent theory of the proper role of armed forces in a democratic republic.

That theory ... envisions the military as a back-up force, operating under its own command, prepared to deal with large scale emergencies, beyond the capabilities of civilian authorities, not for the purpose of executing civilian laws, or even assisting in their execution, but for restoring order, saving lives, and protecting property from natural or man-made disasters.

Id. (emphasis added) (statement Christopher H. Pyle, Professor, Mount Holyoke College).

23. . See McGee, supra note 3, at A3

24. . See PCA Hearing, supra note 13, at 16 (testimony of William H. Taft, Gen. Counsel, U.S. Dep't of Defense) (quoting an Aug. 6, 1979 report on the PCA by the Departments of Justice and Defense).

25. . I

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