The Politics of Fear and Outsourcing Emergency Powers: The Death and Rebirth of the Posse Comitatus Act
September 8, 2009
Lincoln Law Review, Vol. 37, 2010
This article asks the question of whether there are sufficient political or legal obstacles to the Federal Government outsourcing civil law enforcement to private entities during national emergencies. To evaluate this issue, I examine the history of the Posse Comitatus Act’s prohibition on the use of military troops to aid in civil law enforcement, and the 2007 expansions to the limited exception to Posse Comitatus Act provided under the Insurrection Act that were enacted following the arguably disastrous federal response to Hurricane Katrina in 2005. In this context, I conclude that the same political concerns that compelled Congress to repeal those expansions in 2008 are likely the only limits to future efforts to outsource domestic law enforcement to private entities because existing laws do not prohibit such efforts.
This conclusion is uniquely timely going into 2009 and the new administration because I further conclude that neither the Posse Comitatus Act nor the Insurrection Act would directly apply to prevent such outsourcing, leaving the new president free to outsource unless opposing political pressures are sufficient to prevent it. Indeed, federal outsourcing of civil law enforcement has already begun to happen both domestically in the aftermath of Katrina and internationally through private entities like Blackwater Worldwide. Moreover, stress on U.S. military forces stretched thin across two wars may provide an increasingly powerful incentive for policy-makers to use private contractors to bolster the country’s national military forces and fill in gaps that may occur during national emergencies. This leaves the very politicians who have shown a tendency to authorize easily-abused emergency powers in response to national tragedies as perhaps the only forces that could limit those abuses.
Number of Pages in PDF File: 158
Keywords: Posse Comitatus, constitutional law, federalism, emergency powers, terrorism, domestic law enforcement
Date posted: September 8, 2009 ; Last revised: June 14, 2010