'Necessity Hath No Law': Executive Power and the Posse Comitatus Act

Campbell Law Review, 2008

38 Pages Posted: 1 Apr 2008 Last revised: 10 Nov 2008

Candidus Dougherty

Rutgers School of Law - Camden

Abstract

In this article, I comment on the debate over whether the Posse Comitatus Act, which criminalizes the use of the military for domestic law enforcement, should be tightened to restrict Executive action. In Part I, I catalog the historical context in which the Posse Comitatus Act was passed and describe the military events that are most commonly used to support the case for sharply divided civilian and military authorities. In Part II, I discuss the true purpose and intent of the Posse Comitatus Act: to prohibit civilian marshals from calling forth active duty military to enforce domestic law. I also explore the contours of the emergency power doctrine to show that it is not clear that Congress could limit Executive action as a revamped Posse Comitatus Act may attempt to do. Lastly, in Part III I examine whether a Posse Comitatus Act-like law is even necessary by discussing its commonly proffered justifications. Ultimately, I conclude that these justifications are flawed and that the Posse Comitatus Act is unnecessary.

Keywords: Posse Comitatus Act, executive authority, emergency power

JEL Classification: K00, K30, K10

Suggested Citation

Dougherty, Candidus, 'Necessity Hath No Law': Executive Power and the Posse Comitatus Act. Campbell Law Review, 2008. Available at SSRN: https://ssrn.com/abstract=1114703

Candidus Dougherty (Contact Author)

Rutgers School of Law - Camden ( email )

NJ
United States

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