Posse Comitatus Act - History

History

The Act, § 15 of the appropriations bill for the Army for 1879, found at 20 Stat. 152, was a response to, and subsequent prohibition of, the military occupation by U.S. Army troops of the former Confederate States during the ten years of Reconstruction (1867–1877) following the American Civil War (1861–1865). The U.S. withdrew federal troops from Southern states as a result of a compromise in one of the most disputed national elections in American history, the 1876 U.S. presidential election. Samuel J. Tilden of New York, the Democratic candidate, defeated Republican candidate Rutherford B. Hayes of Ohio in the popular vote. Tilden garnered 184 electoral votes to Hayes' 165; 20 disputed electoral votes remained uncounted. After a bitter fight, Congress struck a deal resolving the dispute and awarding the presidency to Hayes.

In return for Southern acquiescence regarding Hayes, Republicans agreed to support the withdrawal of federal troops from the former Confederate states, ending Reconstruction. Known as the Compromise of 1877, this deal of political expediency removed federal protection for Southern ex-slaves. The U.S. Constitution places primary responsibility for the holding of elections in the hands of the individual states. The maintenance of peace, conduct of orderly elections, and prosecution of unlawful actions are all state responsibilities, pursuant of any state's role of exercising police power and maintaining law and order, whether part of a wider federation or a unitary state.

During the local, state, and federal elections of 1874 and 1876 in the former Confederate states, all levels of government chose not to exercise their police powers to maintain law and order. Many acts of violence, and a suppression of the vote of some political and racial groups, resulted in the election of state legislators and U.S. congressmen who halted and reversed political reform in the American South.

When the U.S. Representatives and Senators from the former Confederate states reached Washington, they set as a priority the creation of a statute prohibiting any future President or Congress from directing, by military order or federal legislation, the imposition of federal troops in any U.S. state.

An exception to Posse Comitatus Act derived from the Force Acts allowed President Eisenhower to send federal troops into Little Rock, Arkansas, during the 1958 school desegregation crisis. The Force Acts, among other powers, allow the President to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.

The original Posse Comitatus Act referred essentially to the United States Army. The Air Force was added in 1956 and the Navy and the Marine Corps have been included by a regulation of the Department of Defense. The United States Coast Guard is not included in the Act. (The U.S. Coast Guard was originally part of the Treasury Department, was later part of the Department of Transportation, and is now within the Department of Homeland Security.) This law is often relied upon to prevent the Department of Defense from interfering in domestic law enforcement.