Domestic Military Intervention During the Novel Coronavirus Pandemic: Understanding the Implications of the Posse Comitatus Act
As the impact of the novel coronavirus pandemic on the United States deepens, questions are arising as to whether and to what extent the federal government can call upon the military to assist with the country’s response and maintain order.
On March 26, the total number of confirmed novel coronavirus infections in the United States surpassed the totals in China and Italy, putting the U.S. at the top of the list of the countries with the most confirmed cases in the world. Although this is significant, several leading health experts also suggest that it may just be the beginning. While many of the initial business closure and shelter-in-place orders implemented in response to the pandemic were capped at two weeks, experts say it could be anywhere from six to 18 months until the country is in a position to safely return to normal.
With this in mind, many questions have been raised regarding the government’s ability and authority to respond to the pandemic effectively. In this vein, one statute that has recently resurfaced in the public discourse is the Posse Comitatus Act—a law that was signed by President Rutherford B. Hayes in 1878. So, what is the Posse Comitatus Act, and how is it relevant (if at all) to the novel coronavirus pandemic?
What is the Posse Comitatus Act?
The Posse Comitatus Act is a federal law that dates back to the late nineteenth century. It was originally enacted to help ensure that the Executive Branch could not deploy the U.S. Armed Forces domestically in order to enforce federal law in conflict with the sovereign rights of the individual states. As explained by the Congressional Research Service:
“The Constitution permits Congress to authorize the use of the militia ‘to execute the Laws of the Union, suppress Insurrections and repel Invasions.’ And it guarantees the states protection against invasion or usurpation of their ‘republican form of government,’ and, upon the request of the state legislature, against ‘domestic violence.’ . . .
“The Posse Comitatus Act outlaws the 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.”
In short, while the Constitution provided Congress the authority to authorize use of the military to “execute the Laws of the Union,” it did not exclusively grant this power to Congress. The Posse Comitatus Act ensures that the Executive Branch cannot call the U.S. Armed Forces into domestic service absent legislative approval.
However, the Posse Comitatus Act contains various inherent limitations, and there are some important exceptions to the prohibition on domestic deployment of military forces by the Executive Branch.
1. Inherent Limitations of the Posse Comitatus Act
In order to understand the inherent limitations of the Posse Comitatus Act, it is helpful to look at the language of the statute itself. As codified in 18 U.S.C. Section 1385, the law states:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
Most significantly, the Posse Comitatus Act applies only to the Army and the Air Force—not the Navy or the Marine Corps, and not the Coast Guard or the National Guard. However, as explained by the U.S.Northern Command, [a]lthough the [Posse Comitatus Act] prohibits only the Army and Air Force . . . from performing domestic law enforcement activities, another statute, 10 USC Section 275, requires the Secretary of Defense to prescribe regulations to prohibit members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.” Pursuant to this authority, regulations have been enacted that apply restrictions comparable to those established by the Posse Comitatus Act to the Navy and Marine Corps.
The next major limitation of the Posse Comitatus Act is its application only calling upon the U.S. Armed Services to “execute the laws” of the United States. As explained by the Congressional Research Service, court decisions handed down subsequent to the enactment of the Posse Comitatus Act have held that execution of the law involves either, “(a) . . . the Armed Forces perform[ing] tasks assigned to an organ of civil government, or (b) . . . the Armed Forces perform[ing] tasks assigned to them solely for purposes of civilian government.” Applying this definition, the courts have found violations of the Posse Comitatus Act in cases where domestic deployment of military forces has “pervade[d] the activities” of civilian government officials and where the military authority has been exerted over private citizens in a manner that was “regulatory, prescriptive, or compulsory.”
2. Exceptions to the Posse Comitatus Act that Permit Unilateral Action By the Executive Branch
Importantly, while the Posse Comitatus Act and related enactments generally prohibit the Executive Branch from calling the U.S. Armed Forces into domestic service in order to execute the law, these laws’ prohibitions are not absolute. For example, the Executive Branch has the authority to federalize the National Guard in response to national emergencies in appropriate cases, and there are statutory exceptions that allow for use of the military to conduct counterdrug operations, to prevent insurrection, and to respond to threat involving nuclear materials and weapons of mass destruction.
How is the Posse Comitatus Act Relevant (if at All) to the Novel Coronavirus Pandemic?
What are the implications of the Posse Comitatus Act during the novel coronavirus pandemic? On the one hand, the act serves to ensure that the Executive Branch cannot unilaterally deploy military forces within the United States to enforce order. This authority is largely reserved for state and local law enforcement authorities, with federal law enforcement authorities (i.e. the Federal Bureau of Investigation (FBI) and the U.S. Department of Justice (DOJ)) stepping in to enforce federal laws as and when necessary.
On the other hand, it leaves open a couple of possibilities. The first of these possibilities is Congress enacting legislation that authorizes the use of the U.S. Armed Forces to fight the novel coronavirus pandemic domestically in some capacity. Congress has the constitutional authority to call upon the military, “to execute the Laws of the Union,” and it has the power to amend or repeal laws impacting the ability to domestically deploy the military branches subject to Presidential approval.
The second possibility, which some experts view as being more realistic during the novel coronavirus pandemic, is the possibility of the Executive Branch deciding to federalize the National Guard. Several states have deployed their National Guards to assist with delivering medical supplies and other aspects of combatting the novel coronavirus pandemic; and, as hospitals and local municipalities continue to face overwhelming burdens, more governors may call upon their states’ National Guards in increasingly larger capacities. If the President federalizes the National Guard, this means that servicemembers can be called upon to respond to national, rather than state-declared, emergencies, and this gives the Executive Branch the power to direct spending, deployment, and various other aspects of the National Guard’s response.
Will this happen? President Trump has provided federal assistance to the National Guards of California, New York, and Washington already, though the National Guards in these states currently remain subject to the governors’ executive authority under Title 32 of the U.S. Code. In order for President Trump to truly federalize the National Guard in these (or other) states, more would be required, and the governors in all affected states would almost certainly want to have their say in having their authority to direct the National Guard usurped by the federal government.
When Will We Know More?
Ultimately, as with virtually all other aspects of the federal government’s response to the novel coronavirus pandemic, only time will tell when we will know more. The situation is continuing to develop rapidly, and the current data suggest that the number of infections and deaths will continue to rise at exponential rates in the coming weeks and months. Whether this is enough to trigger Congressional action under the Posse Comitatus Act, federalization of the National Guard, or other military-related intervention remains to be seen. In the meantime, healthcare providers, business owners, and individuals should continue to adhere to local, state, and federal authorities’ guidance, and companies should ensure that they are taking appropriate measures to maintain compliance, mitigate risk, and protect their employees and shareholders long-term.
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Oberheiden P.C. is a federal compliance and defense law firm that represents healthcare providers and other businesses nationwide. For media inquiries or to speak with one of our federal attorneys or former federal agents about your company’s legal needs during the novel coronavirus pandemic, please call 888-680-1745 or contact us online today.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.