President-elect Trump’s confirmation last month of his plan to deploy military assets for immigration enforcement sparked a constitutional debate. Legal scholars and commentators quickly declared such action forbidden by long-standing prohibitions on military involvement in domestic law enforcement. But this conventional wisdom misreads both the letter and spirit of American law. A careful examination of a pair of longstanding statutes reveals military support for immigration enforcement is permissible.
(Article by Patrick O’Malley and Joe Buccino republished from RealClearWire.com)
The issue hinges on two 19th century laws: the Posse Comitatus Act of 1878 and the Insurrection Act of 1807. When properly understood, both allow the President to use active-duty military forces to support the deportation of illegal immigrants.
Posse Comitatus: A Firewall Between the Military and Law Enforcement
Since our nation’s founding, Americans have been wary of standing armies and their role in civilian affairs. Concerns about military involvement in domestic law enforcement dates back to colonial experiences under British rule, particularly the quartering of British troops in civilian homes and their use to enforce British law. This experience was so troubling that it influenced several key elements of the Constitution and Bill of Rights.
The Third Amendment, ratified in 1791, explicitly prohibits American soldiers from occupying private homes inside the county during peacetime. The Posse Comitatus Act of 1878, informed by a distrust of a large military force employed against its citizenry, codified the separation of military and civilian law enforcement. This act established a firewall between military force and civilian law enforcement.
The term “posse comitatus,” Latin for “power of the country,” dates back to the medieval England tradition of local sheriffs organizing citizens to assist in maintaining public order. A form of this practice made its way to the American Old West: sheriffs called for volunteers – “a posse” of the county – to chase down bandits. This power allowed sheriffs to deputize civilians to temporarily suppress lawlessness and maintain order.
The Posse Comitatus Act of 1878 derives its name from this practice with a crucial distinction: it specifically prohibits the military from acting as this civilian force. The law’s architects recognized that using soldiers instead of citizens for domestic law enforcement would fundamentally alter the relationship between military power and civil society. They sought to ensure that federal troops were kept out of local law enforcement.
Yet this legislative barrier against using military force for domestic law enforcement is not absolute. Congress regularly makes exceptions, allowing military support to civilian law enforcement for actions such as protecting federal property, conducting domestic counterterror operations, engaging in counterdrug efforts. In cases related to immigration enforcement, courts have ruled the Posse Comitatus Act only prohibits direct military involvement in law enforcement actions such as detaining citizens. Support activities, from transportation to surveillance, remain legal. This distinction between direct enforcement and support operations provides the legal basis for President-elect Trump’s proposed use of military assets in his planned deportation program.
Hellbound and Down 
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