The Political Spectrum

I suppose I shouldn’t be too harsh with this, but every once and a while minor inaccuracies really make my blood boil. This is the case with a front page article in today’s Washington Post. The long and the short of the article focuses around a shift in Pentagon policy with respect to the use of the military and its level of involvement in homeland security related issues. This a tricky topic for several reasons, but mostly because of an obscure statute whose current language dates back to the Reconstruction Era, known as the Posse Comitatus Act. All of this is discussed in the article, but I want to focus on a couple of paragraphs in particular, according to the article:

[c]ivil liberties groups have warned that the military's expanded
involvement in homeland defense could bump up against the Posse Comitatus Act of
1878, which restricts the use of troops in domestic law enforcement. But
Pentagon authorities have told Congress they see no need to change the
law.

According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. The Posse Comitatus Act exempts actions authorized by the Constitution. (emphasis added)

While technically correct on its face, these sentences leave a lot of out of what is a highly contentious, very uncertain area of the law. Specifically, it leaves out all of the ambiguity as it relates to the division of power between the President, pursuant to his implied Article II powers, and Congress pursuant to its Article I war making authority. More importantly, however, the article misrepresents what the Posse Comitatus Act actually says. Here is the full text of the statute, which appears at 18 U.S.C. § 1385:

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. (emphasis added)

Now I know this is going to seem silly to some, but my fellow lawyers ought to at least acknowledge the problem (of course I’ve bold-faced it for emphasis). The Post article leaves out the word expressly, which arguably changes the meaning of the entire statute, and calls into question the assertion by the military lawyers that Article II implied powers are sufficient to avoid application of the Posse Comitatus Act. In other words, the statute authorizes the use of the military as posse comitatus only when the Constitution expressly provides for it, which the Constitution arguably never does. Thus, it is an open question as to whether implied powers are sufficient. Article II gives the President authority over the armed forces as Commander-in-Chief, however, it never specifies how far that authority is to extend. In fact, short of a few landmark cases, Youngstown Sheet & Tube v. Sawyer, and Dames and More v. Reagan, which arguably have curtailed executive powers in many respects, we don’t have a very good sense of exactly what powers, if any, are implied by the language of Article II.

That being said, the word expressly, might create a problem for the Posse Comitatus Act itself. It may be possible to argue that the statute violates the concept of separation of powers by restricting the President’s power as Commander-in-Chief and giving Congress more control over military matters than the framers intended. Various versions of the Posse Comitatus Act have existed since 1794 (3d Congress) and never to my knowledge has their been a challenge on these grounds. We do, however, live in different times and under a different threat so anything is possible. Furthermore it is unclear what, if any, authority could be derrived from the Authorization for the Use of Force, passed by Congress and cited by the President for just about every action even remotely connected (no matter how logically attentuated the connection may be, i.e., the ability to detain American Citizens indefintally without access of lawyers or being charged with a crime) with the "war on terror."

My beef is that the reporting leaves the impression that the issue is resolved, when in fact, that couldn’t be further from the truth. There are reasonable, plausible arguments on both sides and the court’s have yet to weigh in with respect to this particular debate. I understand what the reporters were trying to do, but in my opinion, they are misleading people into thinking that the President has far more authority than in fact he may have. Congress clearly could amend the Posse Comitatus Act, and maybe the situation is such that as a matter of policy that is a good idea, but until such a decision is made, it seems that, based on a plain reading of the statute and the Constitution, that the President lacks the ability to use the military (specifically the Army and Air Force, another fault of the statue is that it makes no mention of the other branches of the military) in the capacity indicated by the article.

I’m open to arguments as to why the President should have more authority in this area. Again I’m not saying he doesn’t have the necessary authority under Article II, all I’m saying is right now it is far from clear that he does. Of course, I’m not a huge fan of implied executive powers, but then again, that could simply be due to the fact that I don’t trust this executive. Nevertheless, I’m pretty confident in my ability to cast aside my partisan blinders and state that at best the legal authority is uncertain and at worst it’s non-existent. Like I said, we can debate the merits of the policy if people want, but legally, there are more unanswered questions than answered ones.