Using soldiers for Border Patrol duties would set a precedent that could justify future circumvention of Posse Comitatus prohibitions.

The pros and cons of employing federal troops to enforce the post-Civil War Reconstructionist policies in the South became an issue during the 1876 presidential election. There is evidence that rising citizen distaste for the military occupation contributed to Republican Rutherford B. Hayes’ victory over Democrat Samuel Tilden.

Americans understood that the chief law enforcement officers in this nation were supposed to be county sheriffs. No other officials — especially those representing the federal government — were to have any authority to enforce law. But the conduct of federal troops operating in the Southern states during the Reconstruction period enraged many, and it drew the following strong rebuke from a member of the House of Representatives named Banning:
Our Army, degraded from its high position of defenders of the country from foreign and domestic foes, has been used as a police; has taken possession of polls and controlled elections; has been sent with fixed bayonets into the halls of State Legislatures in time of peace and under the pretense of threatened outbreak; has been placed under the control of subordinate State officials, and, under the instructions of the Attorney General, has been notified to obey the orders of deputy United States marshals, “general and special,” appointed in swarms to do dirty work in a presidential campaign.
After President Hayes took office in March 1877, Congress looked hard at the complaints stemming from federal troop abuses and passed the Posse Comitatus Act of 1878. (“Posse comitatus” means power of the county.) Only a single paragraph in length, the Act made it unlawful “to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress....”

According to Charles Doyle of the Congressional Research Service of the Library of Congress, courts have held that the Act is violated when the military subjects “citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.” But, Doyle noted in his 1995 review of the Act’s history that “there has never been a prosecution” referencing it.

The Library of Congress researcher also reported that, in the period prior to our nation’s War for Independence, British troops were in the colonies “not for protection against a marauding invader … but as an independent military force” sent to police them. He claimed that several grievances were placed in the Declaration of Independence because of this practice. Specifically, the Declaration points to the “Standing Armies” that were “independent of and superior to the Civil Power” and whose personnel were immune “from Punishment for any Murders which they should commit on the Inhabitants of these States.”

Recent creation of the Office of Homeland Security has again focused attention on Posse Comitatus prohibitions. Fears about possibly using military forces, ostensibly assembled to meet new security concerns, have been raised by Brigadier General Joseph R. Barnes, U.S. Army (Ret.). An attorney, General Barnes is a recognized expert on the Posse Comitatus Act who strongly agrees with its intent and, therefore, is outspokenly opposed to “using federal troops for coercive law enforcement.” He insists that “our constitutional tradition and collective political wisdom” demonstrate that such use is “fraught with peril.”

The general’s concerns grew recently when the Defense Department suggested that 1,600 federal soldiers might be deputized as Border Patrol and Customs Service agents at the nation’s borders. If this becomes a reality, these forces would assist in meeting post-9/11 requirements for beefed-up border security.

But, the general wonders, will the proposed forces be acquired from National Guard detachments not subject to the prohibitions in the Posse Comitatus Act? Or will they be personnel under federal jurisdiction? Answering his own questions, he makes the important distinction that National Guard troops when called into service by their state government’s officials are not federal forces and, therefore, are not subject to Posse Comitatus restrictions. But, he adds, when National Guard troops called to assist the Border Patrol are paid with Defense Department funds, they would be “federal troops about to become instant cops [who] may come from the National Guard, but they will be every bit as much a part of the Army as the 82nd Airborne.”

General Barnes also notes that possible deployment of troops for increased border protection was proposed in the Border Integrity Act of 1995 but was “strongly opposed by the Defense Department and rejected by Congress.”

Responding to Defense Secretary Rumsfeld’s comment that any use of federal forces in such a role would merely be “temporary,” Barnes pointed to a definition of temporary as “one day short of permanent.” He obviously fears that using soldiers for Border Patrol duties would set a precedent that could be relied on to justify future circumvention of Posse Comitatus prohibitions — and future employment of the military to police the people, a hallmark of tyrannical government.

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