Process Dangers of Military Involvement in Civil Law Enforcement: Rectifying the Posse Comitatus Act

9 New York University Journal of Legislature & Public Policy, Vol. 9, p. 167, 2005

84 Pages Posted: 29 May 2009

See all articles by Linda Demaine

Linda Demaine

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Brian Rosen

Weil Gotshal & Manges LLP

Date Written: May 28, 2009

Abstract

The Posse Comitatus Act (PCA) prohibits the military from executing the civil law domestically, thereby upholding a fundamental tenet of American society - that civil authorities, not the military, should enforce the civil law. Numerous exceptions to the PCA attempt to balance this tenet with a complementary tenet - that it may be necessary for the military to enforce the civil law under certain circumstances. Unfortunately, almost every element of the PCA, its exceptions, and related laws, regulations, and authorities - collectively referred to herein as the "PCA rules" - is riddled with uncertainty and complexity. Specifically, it is unclear to what situations the PCA applies, what military activities the PCA prohibits, what exceptions to the PCA exist, and the boundaries of the exceptions that do exist. The most obvious consequence of this uncertainty and complexity is the confusion it instills in policymakers, legal practitioners, and service personnel about what domestic activities the military may perform in what situations.

The present Article serves two main purposes. The first is to dispel existing confusion generated by the current PCA rules, thereby increasing the likelihood of correct determinations regarding whether a given military activity is permissible under the rules. In carrying out this purpose, the Article reveals that much of the confusion is inherent to, and inextricable from, the current PCA rules. This revelation motivates the Article's second purpose - to present and assess alternatives to the current PCA rules that are tailored to more effectively promote the rules' underlying tenets.

Keywords: military law, Posse Comitatus Act, law enforcement

Suggested Citation

Demaine, Linda and Rosen, Brian, Process Dangers of Military Involvement in Civil Law Enforcement: Rectifying the Posse Comitatus Act (May 28, 2009). 9 New York University Journal of Legislature & Public Policy, Vol. 9, p. 167, 2005, Available at SSRN: https://ssrn.com/abstract=1411287

Linda Demaine (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Brian Rosen

Weil Gotshal & Manges LLP ( email )

767 Fifth Avenue
New York, NY 10153
United States

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