Constitution Law Tuesday – June 9th

It was good to see interest in my “Constitutional Law Tuesday” post last week about presidential police power within the United States borders under the Insurrection Act of 1807. Shortly after that post was uploaded, a new Constitutional law issue presented itself when a friend pointed out that the Posse Comitatus Act of 1878 limits the President’s ability to use troops for policing and domestic policy enforcement. The name of the Posse Comitatus Act comes from the legal concept of posse comitatus, which is the authority under which a county sheriff, or other law officer, can conscript any able-bodied person to assist in keeping the peace. While it is true that the Posse Comitatus Act limits federal power to use troops within the United States, the Act has exceptions and chief among them is when the President is acting under the authority of the Insurrection Act. The 1807 Insurrection Act has been modified since it was first passed. For example, in 1861, a new section was added allowing the federal government to use the National Guard and armed forces against the will of the state governments in the case of “rebellion against the authority of the government of the United States.” This section was added because of concern for continued rebellion in the Southern states arising from the Civil War. It has been said that the post-Civil War conditions imposed by President Grant during the Reconstruction Period were harsher and thus counter-productive compared to the post-war vision of President Lincoln. After thr Compromise of 1877, the Confederate States returned to Washington with a common goal to see that federal rule and occupation did not return to their states. The Posse Comitatus Act was a response to and prohibition of the military occupation of the former Confederate States by the United States Army during the twelve years of Reconstruction following the American Civil War. After President Hayes used federal troops to end the Great Railroad Strike of 1877, there was sufficient bipartisan support to pass what became the Posse Comitatus Act. While that Act in some ways limits the President’s power to send troops into the states, it did not eliminate or limit those powers granted by the Insurrection Act of 1807.