Samavi Srivastava and Utkarsh Vats, both first year students of National Law University, Bhopal, discusses the legality of law enforcement by Military in U.S.A in light of The Insurrection Act and the Posse Comitatus Act. 

THE PROBLEM 

As protests against racism and for civil liberties in the United States proceeded, while some world leaders came out in support, others were less than accommodating of them. President Trump, a hardcore Republican, not only expressed his disdain of the protests, but also threatened to deploy the military against the protestors if they did not retreat. This brings forth various questions regarding the legality of such an action; the ambit of the presidential powers, their conflict with powers of the states, etc. Two important legislations come into play to address this question: The Insurrection Act and the Posse Comitatus Act. 

Further, is an analysis of the general trend in the USA of moving away from ideas of liberalism, and whether this conflicts with democracy as a whole. This trend also threatens the picture of the USA as the role model of a western liberal democracy. A larger picture is brought to light while assessing the general shift of the world away from traditional ideals of liberalism, and how USA’s actions influence it.  

THE LEGALITY OF TRUMP’S STATEMENT

The idea of prohibiting military from interfering in the affairs of civilians has existed since the Magna Carta of 1215, which iterated that no free man is to be arrested or imprisoned or otherwise withheld except by the law of the land. This view was further upheld by Sir William Blackstone. He believed that interference of the army ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land, for that would be against the Magna Carta. 

Previously, the United States Congress had, through statutes like the Fugitive Slaves Act of 1793[1], allowed the usage of military by federal marshals[2], the American equivalents of British County Sheriffs, for executing a warrant issued by the slave owning family whose slaves had run away. This practice of indifferently using the military prevailed through the civil war into the 1870s. Eventually, in 1877, the House of Representatives, that had a Democratic majority, introduced an Army Appropriation Bill and it was eventually passed by the Senate with a Posse Comitatus clause[3], to limit the arbitrary use of the federal military resources by the President among others. The PCA that exists today remains largely unchanged from the original one.

The PCA outlaws the usage of military for law enforcement purposes unless expressly authorised by the constitution or an act of Congress. This however, leads to a contention between Presidential and Congressional powers. The constitution requires the President to ensure that laws are faithfully executed.[4] The Supreme Court has ruled in In re Debs[5], that when an emergency arises threatening some responsibility entrusted to the federal government, the President may call upon “the army of the Nation, and all its militia to brush away the obstructions.” Simultaneously, the constitution vests Congress with the power to establish, maintain, and regulate the Armed Forces and with the power to describe the circumstances under which the militia may be called into federal service.[6] 

However, the Supreme Court has tried to solve this contention between Presidential and Congressional authorities. In Texas v. White[7] and Youngstown Sheet & Tube Co. v. Sawyer[8], respectively, the Supreme court ruled that the President’s power under the Guarantee Clause of Article IV, Section 4[9], which guarantees the states protection against domestic violence, is only provisionally effective until such time as Congress acts, and that the President may not always use the Armed Forces to meet a domestic emergency when Congress has previously resisted an invitation to sanction their employment.

The Insurrection Act[10] is one of the most significant exceptions to the PCA. It states that the President may call upon the military forces, land or naval, as and when there are cases of insurrection leading to obstruction of laws in the United States or any of its states. However, even before implementing this act, the President must publicly make a proclamation ordering the insurgents to peacefully disperse within a reasonable time, giving them the opportunity to retreat.[11] 

There are certain conditions under which the President may resort to the Insurrection Act while ordering the military to interfere in a state’s functioning. The least controversial circumstance is when the legislature of the State, or otherwise the Governor, itself requests the help of the military to suppress the insurrection.[12] The second condition is when the President believes that it is impracticable to suppress rebellion and enforce laws within a state through the ordinary course of judicial proceedings, and considers it necessary to enforce the armed forces.[13] An example of such an act of President was when George Washington ordered troops to clamp down on the whiskey rebellion started by angry farmers who resented federal tax impositions. This situation initially required an associate justice or the district judge to notify to the President of the United States about the lack of functioning of the judiciary, however, it was eventually made unnecessary. This condition brings in subjectivity and relies mostly on the President’s assessment of the situation in a state, which may or may not always be accurate. Further, terms such as ‘rebellion’ or ‘unlawful obstruction’ are not defined with precision and thereby accord the President with considerable liberty to interpret them. Finally, the President may also call upon the military if he believes that violence in a state is hindering the rights or privileges of any part or class of its people, or is preventing execution of laws and impeding their course of justice, and the authorities within the state are unable to protect such laws and rights.[14] This condition also allows room for subjectivity and hence potential misuse. President Dwight Eisenhower relied on this section in 1957 in Arkansas to eliminate obstructions of justice.

This Act was amended in 2005 post the lack of an adequate response from the Centre during Hurricane Katrina. The Amendment added domestic violence caused by “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition” as a condition for deploying the armed forces in a state to restore public order. This was seen by many as a significant amplification of the powers of the President and an infringement of the powers of a state. However, this ought not to be confused with the Stafford Act that authorises the President to call upon the armed forces for providing aid in states stricken by a natural or man-made disaster. This, unlike the Insurrection Act, does not constitute an exception to the PCA because it merely allows the forces to aid the states in providing relief from the damages caused by the disaster through health and safety measures. It does now empower the forces to implement law and order in the state. 

The Congress also created another exception to the PCA for conditions involving the ‘war on drugs’. The Secretary of Defence has the power to enforce military equipment and personnel for enforcing law related to prevention of the drug problem. Albeit these statutory provisions do not allow direct involvement of the military such as arrests, it encourages their participation in  surveillance and maintenance of peace. 

THE BIG PICTURE 

While Trump’s statement may seem to be made in jest without real implications, it is reflective of a general turn that the United States is taking away from the traditional ideals of Western liberalism. The current administration, with anti-trade, anti-globalism, anti-immigrant policies, along with a rejection of the idea of climate-change, the recent reversal of transgender healthcare protections, and other major policy decisions, has never followed the path of liberalism. Perhaps the apparent apathy towards the ongoing protests for rights and liberties is not so out of context. Yet, President Trump is a democratically elected leader who enjoys popularity among his supporters. 

This suggests that liberalism and democracy are not as inextricable as was once thought. Trump enjoys populism; the support of the ordinary people, which is regarded as the converse of liberalism. “The illiberal populism of Donald Trump entails the reckless use of the mechanisms of democracy to disenfranchise political minorities and diminish civil liberties.” Essentially, populism is democracy without liberalism. The United States was seen as an ideal of a Western liberal democracy by other nations. However, this change might create a ripple effect leading to nations across the world moving away from liberalism. 

The recent tide away from liberalism is threatening to reverse the accomplishments of the modern human rights movement, putting minorities and endangered sections of societies across the world in a position of great disadvantage. Therefore, it is very important to uphold the democratic principles of progressivism and political stability. The most effective way of restoring a less extremist thought is to increase inter group contact. This will help us give up the idea of supremacism and bring everyone out of isolation. Contact and dialogue will put forth ideas of unity and put things in perspective. As Richard Dawkins, an evolutionary biologist and author from Oxford, said, “National pride has evil consequences. Prefer pride in humanity. German pride gave us Hitler, American pride gave us Trump, British pride gave us Brexit. If you must have pride, be proud that Homo sapiens could produce a Darwin, Shakespeare, Mandela, Einstein, Beethoven.” 


Samavi Srivastava and Utkarsh Vats are first year students from National Law University, Bhopal.


[1]Act of Feb. 12, 1793, Respecting fugitives from justice, and persons escaping from the service of their masters, 1 Stat. 302, as amended by 9 Stat. 462 (1850).

[2]See, e.g., 1 Stat. 87 (1789).

[3]See 7 CONG. REC. 3845 (1878)

[4]U.S. CONST. art. II, § 1

[5]In re Debs, 158 U.S. 364, 381 (1895)

[6]U.S. Constitution. art. 1 § 8, cl. 12-16)

[7]Texas v. White, 74 U.S.(1869)

[8]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[9]U. S. Const. Art. IV, § 4

[10]Insurrection Act of 1807, ch. 39, 2 Stat. 443, 443 

[11]10 U.S.C. § 254 (2018)

[12]10 U.S.C. § 251 (2018)

[13]10 U.S.C. § 252 (2018)

[14]10 U.S.C. § 253 (2018)

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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