I find it amazing that various Talking Heads on the YSM (Yellow Stream Media) prattle on endlessly about what Trump can NOT do and never ever bother to look at any supporting documents. At best, they will refer to some equally ill-informed opinion from another person (often a radically left leaning “academic”). As though a collage teaching position conferred authority. It does not. It, at most, means you have some specific training in a very narrow area and can do an adequate job of teaching about it. That training can be, and often is, incorrect.
So what is the source of authority for Trump and the Border? What is he, in fact, compelled to do? Is it true that the US Army can not be applied domestically?
Let’s start with the top dog law of the land, the U.S. Constitution:
U.S. Constitution – Article 4 Section 4
Article 4 – The States
Section 4 – Republican Government
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
OK, pretty clear to me. Invasion is not limited to “by the military of a foreign power”. It is just any invasion. A few thousand person mob crashing your border stations pretty much defines what an “invasion” is.
Looking at the wording, it says “shall protect”. That means it is not optional. It is a compulsion on the Federal Government to secure the borders. NO choice. It goes on further to state that such force can be used even in cases of domestic violence if either the legislative or, when they are out of session, the executive thinks it is needed. In fact, this has been done before.
Clause 2: Protection from invasion and domestic violence
[…] and [the United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Section Four requires the United States to protect each state from invasion, and, upon the application of the state legislature (or executive, if the legislature cannot be convened), from domestic violence. This provision was invoked by Woodrow Wilson during the 1914 Colorado coal strike.
So even that ol’ Democrat Woodrow Wilson was good with that…
Sure looks to me like a pretty much straight up thing. Trump is compelled by law to defend the border against invasion and, should the folks make it onto US Soil and cause disorder, can use the military to quell that “domestic violence”.
This is the power to enlist the men of a county to form a defense when needed (as a rough paraphrase). There is an interesting quirk in how it has been adjudicated:
The posse comitatus, in common law, is all able-bodied males over the age of 15 within a specific county, when mobilized in whole or in part by the conservator of peace – usually the sheriff – to suppress lawlessness or defend the county. The posse comitatus originated in ninth century England simultaneous with the creation of the office of sheriff. Though generally obsolete throughout the world, it remains theoretically, and sometimes practically, part of the United States legal system.
So first off, realize the Sheriff is the law enforcement of importance here. He / She (our local Sheriff is a Lady ;-) can simply declare those soldiers on the border to be part of his “posse”. Delegate to their highest officer instructions to defend the border and put down disruption.
I’m pretty sure that would cover Texas, Arizona, and maybe New Mexico. Inland California too. The coastal county would likely balk.
But wait! There’s more!
Title 42 of the United States Code extends the authority to summon the power of the county to United States magistrate judges when necessary to enforce their orders:
… persons so appointed shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged …
Think Trump can find a “magistrate judge” to order the border closed or defended? This also clearly serves as a precedent for using U.S. “land or naval forces” to enforce domestic law. Since Trump is “charged with the obligation” to defend the border by Article 4, section 4, he must be empowered to do so, and this says via similar actions by judges, that the use of the military is approved.
The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878 by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States. It was passed as an amendment to an army appropriation bill following the end of Reconstruction and was subsequently updated in 1956 and 1981.
The act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force. While the act does not explicitly mention the United States Navy and the United States Marine Corps, the Department of the Navy has prescribed regulations that are generally construed to give the act force with respect to those services as well. The act does not apply to the Army National Guard or the Air National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state’s governor. The United States Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act either, primarily because although the Coast Guard is an armed service, it also has both a maritime law enforcement mission and a federal regulatory agency mission.
The title of the act comes from the legal concept of posse comitatus, the authority under which a county sheriff, or other law officer, conscripts any able-bodied man to assist him or her in keeping the peace.
Now the first thing to realize here is that this is an ACT and so subservient to The Constitution. That Article 4 power overrides any limitations here. But what are these limitations?
Only specifically to the Army. OK, send in the Marines! The Commander In Chief can wave the regulations. It is also clear that the County Sheriff is still able to conscript folks to the border.
It only applies to domestic law enforcement. Border protection is NOT a “local law enforcement” responsibility. It is a FEDERAL obligation. So this act does not apply anyway. Border control is an international operation / policy area, not a ‘domestic policy’ area.
Then there are exceptions, and they have been used before.
In the mid-20th century, the administration of President Dwight D. Eisenhower used an exception to the Posse Comitatus Act, derived from the Enforcement Acts, to send federal troops into Little Rock, Arkansas, during the 1957 school desegregation crisis. The Arkansas governor had opposed desegregation after the U.S. Supreme Court ruled in 1954 in the Brown v. Board of Education that segregated public schools were unconstitutional. The Enforcement 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.
So any State or County that does NOT deputize or defend and protect their people, who refuse to comply with efforts to defend the border, fall into this bucket where the “Enforcement Acts” apply as they are “unwilling to suppress” the mob. Yes, the “Enforcement Acts” applies to voting and vote suppression, but this is an election cycle, no? Think a mob of thousands crossing the border might hinder border folks from voting?…
So despite all the nattering by Talking Heads (including a couple of congress critters who apparently don’t read their constitution or even Wikipedia) it looks like there is plenty of “controlling law” saying Trump can, and in fact MUST, defend and protect the border. That he has full authority to do so. That the Military is able to do “whatever it takes” to prevent this invasion. That it is NOT a matter of “domestic law enforcement” at a local level, but is a National law Enforcement / Border Protection issue. And, if desired, there are at least 3 other things that can be done to add more layers of certainty to the legality of it. (Judge order, Sheriff posse, Enforcement Acts). Further, I think Trump could just Federalize the State Guard units and that too would cover it.
I do think Trump will have the Border Patrol guys in the front line, but IMHO as soon as anyone breaks that line, it becomes a “violent disturbance” and a border incursion and “Military rules apply”.
I also expect Trump is holding an Executive Order for a last minute surprise. To be issued just as the invading mob reaches the border. That way “activist left wing judges” can’t stay it prior to the troops being engaged – and then it becomes an “after the fact litigation”.
What disappoints me is how so many “News” programs can’t be bothered to spend the hour I took to write this up, or the 5 minutes it took to look at the authoritative sources, and read what they say. It isn’t hard. Then a sitting congressman just as clueless and getting air time to show off his stupidity? Just amazing… No, I would not expect them to endorse the clear statements of law that the POTUS MUST defend the border as an obligation, but I would expect them to at least state “there is a possible interpretation” even if then they chose to disagree with it. And then they wonder why “Fake News” sticks to them so well. Because EVERY time I do a “dig here!” into one of their assertions, I find partisan spin, not news or analysis.