The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law Page: 2 of 59
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The Posse Comitatus Act & Related Matters: The Use of the
Military to Execute Civilian Law
The Posse Comitatus Act outlaws willful use of any part of the Army or Air
Force to execute the law unless expressly authorized by the Constitution or an Act of
Congress. History supplies the grist for an argument that the Constitution prohibits
military involvement in civilian affairs subject to only limited alterations by Congress
or the President, but the courts do not appear to have ever accepted the argument
unless violation of more explicit constitutional command could also be shown. The
provision for express constitutional authorization when in fact the Constitution
contains no such express authorizations has been explained alternatively as a
meaningless political face saving device or as an unartful reference to the President's
constitutional powers. The express statutory exceptions include the legislation which
allows the President to use military force to suppression insurrection, 10 U.S.C. 331-
335, and sections which permit the Department of Defense to provide federal, state
and local police with information and equipment, 10 U.S.C. 371-381.
Existing case law indicates that "execution of the law" in violation of the Posse
Comitatus Act occurs (a) when the armed forces perform tasks which are assigned not
to them but to an organ of civil government, or (b) when the armed forces perform
tasks assigned to them solely for purposes of civilian government. Questions arise
most often in the context of assistance to civilian police. At least in this context, the
courts have held that, absent a recognized exception, the Posse Comitatus Act is
violated, (1) when civilian law enforcement officials make "direct active use" of
military investigators; or (2) when the use of the military "pervades the activities" of
the civilian officials; or (3) when the military is used so as to subject "citizens to the
exercise of military power which was regulatory, prescriptive, or compulsory in
nature." The Act is not violated when the armed forces conduct activities for a
military purpose which have incidental benefits for civilian law enforcement officials.
The language of the Act mentions only the Army and the Air Force, but it is
applicable to the Navy and Marines by virtue of administrative action and commands
of other laws. The law enforcement functions of the Coast Guard have been expressly
authorized by act of Congress and consequently cannot be said to be contrary to the
Act. The Act has been applied to the National Guard when it is in federal service, to
civilian employees of the armed forces, and to off-duty military personnel.
The Act is probably only applicable within the geographical confines of the
United States, but the supplemental provisions of 10 U.S.C. 371-381 appear to apply
Finally, the Act is a criminal statute under which there has never been a
prosecution. Although violations will on rare occasions result in the exclusion of
evidence, the dismissal of criminal charges, or a civil cause of action, as a practical
matter compliance is ordinarily the result of military self-restraint.
This report appears in abridged form as CRS Report RS20590, The Posse
Comitatus Act: A Sketch.
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The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law, report, June 1, 2000; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc810022/m1/2/: accessed September 25, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.