Posted on 06/20/2020 2:51:52 PM PDT by Ennis85
In the wave of cancellations sweeping America, Confederate statues have been particularly hard hit.
They have been graffitied, assaulted, and torn down, while authorities rush to remove them.
For his part, President Donald Trump has been a steadfast defender of the statues and other forms of recognition of the Confederacy. He has come out in favor of preserving the names of military bases named after Confederate generals and pointedly said that we should build on our heritage rather than tear it down.
Conservatives tend to think the same way. They reflexively oppose politically correct campaigns to destroy anything giving offense.
They fear where the slippery slope of woke iconoclasm will lead — first it’s Jefferson Davis, ultimately George Washington.
They value tradition and worry we are trashing part of our history.
This impulse, though, is a mistake. Confederate statues and symbols deserve to be reevaluated, and often mothballed.
n the wave of cancellations sweeping America, Confederate statues have been particularly hard hit.
They have been graffitied, assaulted, and torn down, while authorities rush to remove them.
For his part, President Donald Trump has been a steadfast defender of the statues and other forms of recognition of the Confederacy. He has come out in favor of preserving the names of military bases named after Confederate generals and pointedly said that we should build on our heritage rather than tear it down.
Conservatives tend to think the same way. They reflexively oppose politically correct campaigns to destroy anything giving offense.
They fear where the slippery slope of woke iconoclasm will lead — first it’s Jefferson Davis, ultimately George Washington.
They value tradition and worry we are trashing part of our history.
This impulse, though, is a mistake. Confederate statues and symbols deserve to be reevaluated, and often mothballed.
Didn't seem to bother President Lyndon Johnson though when he sent troops to Washington, D.C.
A possibly significant factor may be that Lyndon Johnson's order of April 1968 was after he withdrew from running for reelection in March 1968.
The legal aspect of deploying troops to D.C. is different from a state. It is a Federal district. Article 4, Section 4, limits the Executive regarding states rights. D.C. does not have any rights of a sovereign state.
Trump may have some concern with political generals. When troops were ordered to stage in areas around D.C., the general ordered they do so without arms or bullets. The National Guard sent in to control protesters were unarmed (or disarmed by the Pentagon).
Many Guard members deployed in cities around the country carry personal weapons, but the D.C. guard made the decision for troops to remain unarmed to avoid being perceived as a hostile force, D.C. Guard Command Sgt. Maj. Michael Brooks said in a statement to Military.com.
I believe it likely that the whole thing is a coordinated effort involving Lawfare, some state governors, and the people pulling the strings behind Antifa and BLM, with many of the protesters being unwitting useful idiots and opportunistic looters. It is likely that a draft Complaint for a lawsuit was made in advance, and a lawsuit would be filed within hours of troop deployment to an unwilling state. The Kabuki theater includes the complicit governors and mayors proclaiming that they have things under control, rather like Keven Bacon in Animal House, "all is well." CHAZ/CHOP is a street party, part of a summer of love.
This is all part of Campaign 2020.
The Posse Commitatus Act is what limits a President’s ability to employ federal troops to enforce the laws.
A Governor has to request that a President send in troops. I assume it’s what interferes with Trump’s ability to use troops to quell the riots.
This didn’t apply when LBJ ordered troops to Washington DC, and it may not apply now.
Prior to 1973 the District was governed by Congress. And today it’s still a federal district and not part of Maryland.
The Posse Commitatus Act is what limits a President’s ability to employ federal troops to enforce the laws.
The Posse Comitatus Act is codified as a prohibitory criminal statute. The Insurrection Act empowers the President to use the military to enforce laws of the United States, as specified therein.
The Constitution, Article 4, Section 4 limits what Congress can authorize, and what the President can do.
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.
A Governor has to request that a President send in troops. I assume it’s what interferes with Trump’s ability to use troops to quell the riots.
The legislature of the state must make the application, unless the legislature cannot be convened (in cases of domestic violence). In cases of invasion or insurrection, application is not needed.
U.S. Constitution, Art. 1, Sec. 8., Cl. 15.
[Congress shall have the Power:] To provide for calling forth the Militia to execute the Laws of the Union, supress Insurrections and repel Invasions.
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insurrection. (15c) A violent revolt against an oppressive authority, usu. a government. ...“Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society.” 77 C.J.S. Riot; Insurrection § 29, at 579 (1994).
Black's Law Dictionary, 11th Ed., 2019. CJS stands for Corpus Juris Secundum, a legal encyclopedia.
The Posse Comitatus act is codified as a criminal statute that provides a criminal penalty for using the military other than as expressly authorized by the Constitution or Act of Congress. The Insurrection Acts authorize the use of military force to enforce the laws or put down insurrections.
https://law.justia.com/codes/us/2018/title-18/part-i/chapter-67/sec-1385/
18 U.S.C. § 1385 (2018)§1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-252/
10 U.S.C. § 252 (2018)§252. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
I believe there was a 2006 or 2007 revision of the 1807 Insurrection Act in 10 U.S.C. §§ 331-335. As I understand, it now reads as follows (my red bold emphasis below):
Sec. 331. Federal aid for State governments
Whenever there is an insurrections in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.Sec. 332. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.Sec. 333. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
Sec. 334. Proclamation to disperse
Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.Sec. 335. Guam and Virgin Islands included as “State” For purposes of this chapter, the term "State" includes Guam and the Virgin Islands.
The Section 333 remark about "any situation covered by clause 1" interests me. From the following article (Link):
Section 333, the primary portion of the Act amended in October 2006, permits the President, without a request from a State, to authorize the armed forces to suppress insurrection, domestic violence, unlawful combination, or conspiracy in a State under certain conditions.34
And with respect to your latest post about Posse Comitatus (Post 243), I searched for a discussion comparing Posse Comitatus with the Insurrection Act, and I found this article, apparently written in 2008: (Understanding the Posse Comitatus Act and the Insurrection Act). Here is what it says (my bold below):
Restated even more clearly, the intent of this law [Posse Comitatus] reads as follows: Only the Congress or the President of the United States may authorize the use of the Army and Air Force to execute the laws.That is what the Posse Comitatus Act means-or at least what it meant when it was enacted in 1878. Unfortunately for the Nation, the meaning of the law was completely revised by activist judges in the 1970s, so recent case law is the opposite of the law itself. That modern revised version of the Posse Comitatus Act is what most people are citing when they assert that federal troops are prohibited from enforcing the law in the United States. Fortunately, the Insurrection Act stands, and it permits the President to use federal troops to enforce the laws either at the request of a governor or on the initiative of the President.
The Insurrection Act consists of four statutes enacted at different times for different reasons that, when considered as a whole, provide the power that Presidents have used many times as the legal basis for using troops to enforce the law. . . .
The Insurrection Act empowers the President, either upon his own initiative or at the request of a governor to use federal troops to address a variety of civil disturbances that could be provoked by a major terrorist attack. Sections 332 and 333 make it clear that it is up to the President to determine when and where to use federal troops to enforce the laws. The prudent reader should see for him or her self by going to the Internet and reading the statutes cited.
The truth of the matter is that the Posse Comitatus Act is irrelevant. It need not be changed. What needs to be changed is the prevalent misconception of its original intent. As the parsing exercise above shows, it was intended to allow the President and only the President to use federal troops to execute the laws. As the discussion of the Insurrection Act shows, the President has sufficient authority to do what needs to be done to use federal troops to maintain law and order. The people, the politicians, and the President all need to understand that.
That is what the paper argues anyway. As you said in Post 243 [my bold]:
"The Posse Comitatus act is codified as a criminal statute that provides a criminal penalty for using the military other than as expressly authorized by the Constitution or Act of Congress.
Does the Insurrection Act count as "expressly authorized"? Or does "expressly authorized" mean that Congress has to authorize each specific case such as what Section 332 and 333 seem to authorize the President to do on his own? Which act rules? Posse Comitatus was modified in 2018. The test I quoted from about was apparently written in 2008.
The Daily Dispatch of Richmond, Virginia, October 26, 1861Nearly all the newspapers fall into the error of referring to the President's recent proclamation as a declaration of martial law in South Carolina. The President has not declared martial law, and has no power to do so under the act of Congress commonly known as the kuklux law. - New York Tribune.
They certainly err in saying that the President has declared martial law; but they are not mistaken, after all. Martial law is the only law existing in those counties in which the privilege of the writ of habeas corpus is suspended. For the courts of justice are closed. There is no appeal. Any man may be imprisoned and kept in prison at the will of General Grant. That is martial law. The Tribune says the kuklux law “provides that the case of each person arrested shall at once be brought before the grand jury of the Federal court, and if the Jury do not find a bill of indictment he shall be forthwith released." Yes; but that provision is a dead letter where the writ of habeas corpus is suspended, General Grant imprisons, say, Governor Orr. Orr is kept in jail twelve months without trial, and no true bill of indictment is ever found against him. What of it? Who is to discharge him? We answer, General Grant, or General Grant's underling - some military officer. Nobody else can do it. And no military officer will do it contrary to Grant's wishes in the matter. That is martial law. Grant's will is the only law.
The Tribune will say that Grant will not interfere. He will allow his officers to release Orr. But that won't change the fact that he could keep Orr in jail as long as he chose. It is martial law, and nothing else. Grant's will is the only law in the case.
Martial Law. -- The following paragraph from from John Mitchel’s paper, the Irish Citizen, illustrate forcibly, and proves more convincingly than any argument could, that martial law does prevail in South Carolina: "The colored Radical senator from that region, one Hayne, writes to the United States District Attorney of South Carolina declaring that in his county of Marion 'no kuklux outrages have ever been committed.’ He ventures to surmise that ‘Marion county' may be a 'typographical error,’ and "innocently wishes it corrected. It is all very fine, Mr. Senator Hayne (colored), but we would have you to know that Mr. Grant is, by law, the sole judge as to whether there are kuklux outrages in your county or not. He is to be satisfied -- nobody else -- that your county is in rebellion, and if he chooses to say there are kuklux miscreants there, why they are there; and a Marion senator, or any other man, who protests that there are none, is what the Tribune would call ‘willful liar,’ that's all. The audacious ruffianism of this President of ours begins to be appreciated after all. We all know what it means."
Mr. Greeley will see that even a typographical error can put Grant's will above the law. Of course, then, Grant can name as many counties as he chooses, and in all that he names substitute his will for the law. It does not depend upon anything in the world but Grant's dictum. If he says all Virginia is in rebellion, and suspends the privilege of the writ of habeas corpus, thus closing our courts of justice and locking up his victims in jail during his pleasure, there is no appeal. He is the Great Dictator, the Despot, the Autocrat of all the United States -- States united in the bonds of an unmitigated despotism. That is martial law, Mr. Greeley.
But sending in troops is not declaring habeas corpus. It is sending troops to restore order and protect the people. A president does not have the power to suspend habeas corpus on his own. Congress has to suspend habeas corpus or authorize the president to do it (sorry, Lincoln, you were wrong). If a president sends in troops to enforce the law in a state or region without the governor or legislature of a state requesting the help of the president, the courts, federal and state, are still working there unless Congress suspends habeas corpus or allows the president to suspend it.
If Congress has changed Posse Comitatus such that a president can no longer take quick action when riots are running rampant in a state, destroying property and injuring and killing people, and the state fails to control them, then the country has no quick way to stop the outrage and protect people and their property when the governor (or a split Congress), for whatever reason, looks the other way and lets the riots proceed.
https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-251/10 U.S.C. § 251 (2018)
§251. Federal aid for State governments
Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
(Aug. 10, 1956, ch. 1041, 70A Stat. 15, §331; renumbered §251, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
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https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-252/
10 U.S.C. § 252 (2018)
§252. Use of militia and armed forces to enforce Federal authority
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
(Aug. 10, 1956, ch. 1041, 70A Stat. 15, §332; Pub. L. 109–163, div. A, title X, §1057(a)(2), Jan. 6, 2006, 119 Stat. 3440; renumbered §252, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
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https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-253/
10 U.S.C. § 253 (2018)
§253. Interference with State and Federal law
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
(Aug. 10, 1956, ch. 1041, 70A Stat. 15, §333; Pub. L. 109–364, div. A, title X, §1076(a)(1), Oct. 17, 2006, 120 Stat. 2404; Pub. L. 110–181, div. A, title X, §1068(a)(1), Jan. 28, 2008, 122 Stat. 325; renumbered §253, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
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https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-254/
10 U.S.C. § 254 (2018)
§254. Proclamation to disperse
Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.
(Aug. 10, 1956, ch. 1041, 70A Stat. 16, §334; Pub. L. 109–364, div. A, title X, §1076(a)(2), Oct. 17, 2006, 120 Stat. 2405; Pub. L. 110–181, div. A, title X, §1068(a)(2), Jan. 28, 2008, 122 Stat. 325; renumbered §254, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
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https://law.justia.com/codes/us/2018/title-10/subtitle-a/part-i/chapter-13/sec-255/
10 U.S.C. § 255 (2018)
§255. Guam and Virgin Islands included as "State"
For purposes of this chapter, the term "State" includes Guam and the Virgin Islands.
(Added Pub. L. 90–497, §11, Sept. 11, 1968, 82 Stat. 847, §335; amended Pub. L. 96–513, title V, §511(11)(A), Dec. 12, 1980, 94 Stat. 2920; Pub. L. 109–163, div. A, title X, §1057(a)(8), Jan. 6, 2006, 119 Stat. 3441; renumbered §255, Pub. L. 114–328, div. A, title XII, §1241(a)(2), Dec. 23, 2016, 130 Stat. 2497.)
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At 10 U.S.C. §251 (formerly 10 U.S.C. §331) it states, "Whenever there is an insurrection in any State against its government...." I do not think a claim can be sustained that there is an insurrection against any state government. There are a few governments where the heads of government have marched with or sided with protesters. Governments have stood down their police.
At 10 U.S.C. §252 (formerly 10 U.S.C. §332) it states, "Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State...." It may be a bit of a stretch to maintain a claim that there is rebellion against the laws of the United States. There is great and organized civil disorder within states, generally within states condoning the disorder which violates State law. Governors and mayors have denied any need for Federal assistance.
At 10 U.S.C. §253 (formerly 10 U.S.C. 333) it states:
"The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection;
[...]
It would be possible to act on something like CHAZ/CHOP if the state government refuses or fails to do so AND a United States Federal law is hindered from execution. The state or local government has said it can and will act. At what point will the 9th Circuit and, more importantly, SCOTUS uphold Federal intervention?
Some points to consider are that the government abandoned the police precinct; it was not a conquest by riot. The concrete barriers around CHOP were constructed by the government, not CHOP or rioters.
This appears to be a coordinated effort involving lawyers, paid professional trouble makers, and some far left government officials to create a legal and political headache for the President. Some of the jargon sounds like it is straight out of Occupy Wall Street from a few years back.
It is not exactly original. It is like going back 50 years to Free Derry corner.
Sending in troops there may have addressed one problem while creating another. Troops, like police, become targets of antagonists. Troops are not trained so much to stand there and take it. With paratroopers sent into Derry, Bloody Sunday happened. Years of "the troubles" ensued. In the U.S., Kent State happened, relatively speaking a lesser event.
Depending upon what United States law(s) is/are claimed to be hindered, how long would the troop presence be required? Once there, the state and local authorities can say it is someone else's problem.
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The Section 333 [now 10 U.S.C. §253] remark about "any situation covered by clause 1" interests me. From the following article (Link):
Section 333, the primary portion of the Act amended in October 2006, permits the President, without a request from a State, to authorize the armed forces to suppress insurrection, domestic violence, unlawful combination, or conspiracy in a State under certain conditions.34
Danielle Crockett, The Insurrection Act and Executive Power to Respond with Force to Natural Disasters
Section 333, the primary portion of the Act amended in October 2006, permits the President, without a request from a State, to authorize the armed forces to suppress insurrection, domestic violence, unlawful combination, or conspiracy in a State under certain conditions.34 Under the pre-amendment version of the Act, these conditions are twofold. First, where the insurrection, domestic violence, unlawful combination, or conspiracy hinders the execution of the laws of a State and the laws of the United States to the point where the people are deprived of a right, privilege or immunity, or other named constitutional right, and where the authorities of the State fail, or are unable to protect that right, privilege or immunity, the President may use the military to suppress the insurrection, domestic violence, unlawful combination, or conspiracy.35 Second, where the insurrection, domestic violence, unlawful combination, or conspiracy opposes or obstructs the execution of the laws of the United States, the President may employ the military to suppress it.3634 10 U.S.C. § 333 (1998). [now 10 U.S.C. §253]
35 10 U.S.C. § 333(1) (1998).
36 10 U.S.C. § 333(2) (1998).
We are still back at the Constitutional provision, Art. 4, Sec. 4:
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.
And, under Article I, Sec. 8, Cl. 15, the Congress was delegated power "To provide for calling forth the Militia to execute the Laws of the Union, supress Insurrections and repel Invasions."
Also Art. I, Sec. 8, Cl. 18: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
And add Art II, Sec 3, that the President, "shall take care that the laws be faithfully executed."
There is implied power that the President has the authority to do what is necessary to see that the United States (federal) laws are faithfully executed. It is explicitly provided that Congress can pass laws to make that so. Then it becomes a matter of looking at what laws Congress has passed.
UNDERSTANDING THE POSSE COMITATUS ACT AND THE INSURRECTION ACTJohn R. Brinkerhoff, Colonel USA Retired
[excerpt]
I know you are waiting eagerly to find out what happens to those "whoevers" that do this bad thing willfully, so we next add the consequences of such an action, and now the law reads as follows:Whoever willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.
This is almost the complete law. If it were the complete law, the pontificators would be correct in asserting that the law prohibits the use of the Army and Air Force from enforcing the law in the United Sates. However, Congress included an important qualification in the sentence that is often overlooked by those who prefer an absolute prohibition. The important exception is the following clause that modifies the subject: Except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.
It is clear that Congress has someone in mind that could lawfully authorize the Army and Air Force to execute the laws. Who is this person or persons to whom Congress grants that authority? Congress has on several occasions enacted laws that authorize one person-and one person only-to authorize the Army and Air Force to execute the laws. That person is the President of the United States.
To make it clear what the sentence really says, I will substitute this meaning of the exception clause in the parsed version of the Posse Comitatus Act.
Whoever, except the Congress or the President of the United States, willfully uses any part of the Army or the Air Force as a posse comitatus of otherwise to execute the laws shall be fined under this title or imprisoned or both.
Restated even more clearly, the intent of this law reads as follows: Only the Congress or the President of the United States may authorize the use of the Army and Air Force to execute the laws.
That is what the Posse Comitatus Act means-or at least what it meant when it was enacted in 1878. Unfortunately for the Nation, the meaning of the law was completely revised by activist judges in the 1970s, so recent case law is the opposite of the law itself. That modern revised version of the Posse Comitatus Act is what most people are citing when they assert that federal troops are prohibited from enforcing the law in the United States. Fortunately, the Insurrection Act stands, and it permits the President to use federal troops to enforce the laws either at the request of a governor or on the initiative of the President.
That is creative writing, but it is not law.
He has changed the actual law:
Whoever willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.
to his wet dream:
Only the Congress or the President of the United States may authorize the use of the Army and Air Force to execute the laws.
Now all he has to do is get the Congress to enact his wet dream and get the President to sign off on it, and he will have something. Whatever that something would be, it would never be in Title 18, the federal criminal statutes.
Title 18, U.S.C. §1385 is a criminal statute. It does not authorize anybody to do anything. As with all criminal statutes under Title 18, it is prohibitory in nature. It applies to whoever violates the statute. Whoever would be any person of age and competence to commit a criminal act. It then prescribes a punishment for commission of the criminal act. About the only person empowered by a criminal statute are those who charge and prosecute, and the judge who pronounces sentence. Brinkerhoff is in an inapplicable statute. His rewording would remove it from the realm of criminal statutes.
This writer seriously does not even know what a posse comitatus is.
posse comitatus n. [Latin “power of the county”] (16c) A group of citizens who are called together to help the sheriff keep the peace or conduct rescue operations. — Often shortened to posse.Posse Comitatus Act. An 1878 federal statute that, with a few exceptions, prohibits the Army or Air Force from directly participating in civilian law-enforcement operations, as by making arrests, conducting searches, or seizing evidence. • The Act does not usu. apply to members of the Navy, the National Guard, or the Coast Guard. 18 USCA § 1385. — Abbr. PCA
Black's Law Dictionary, 11th Ed., 2019
POSSE COMITATUS —Lat.: to be able to be an attendant. “In a proper case the sheriff may summon to his assistance any person to assist him in making an arrest for a felony. A posse comitatus, i.e., those called to attend the sheriff, may be summoned verbally. The mode is immaterial, so long as the object is to require assistance. A person so summoned is neither an officer nor a mere private person but occupies the legal position of a posse comitatus and, while acting under the sheriff’s orders, is just as much clothed with the protection of the law as the sheriff himself. It is not essential for a posse comitatus to be and remain in the actual physical presence of the sheriff; it is sufficient if the two are actually endeavoring to make the arrest and acting in concert with a view to effect their common design.” 449 S.W. 2d 656, 661.
Steven H. Gifis, Law Dictionary, 7th Ed., 2016.
https://books.google.com/books?id=YAnRAAAAMAAJ&pg=PA637&lpg=PA637
Hearings before a Subcommittee of the Committee on Apropriations, House of Representatives, Ninety-Sixth Congress, Second Session, September 12, 1979, page 637:
JOHN R . BRINKERHOFFJohn R . Brinkerhoff is the Special Assistant to the Deputy Assistant Secretary of Defense for Reserve Affairs. Mr. Brinkerhoff was appointed to this position in April 1978.
John R. Brinkerhoff was born January 31, 1928. He graduated from the United States Military Academy, West Point New York in 1950 with a BS degree. He has earned three graduate degrees: an MS from the California Institute of Technology in Civil Engineering in 1956; an MA from Columbia University in Geography in 1964; and an MSA from George Washington University in Operations Research and Management Science in 1976. He is a graduate of the Army Command and Staff College and the Army War College (Non-Resident Course).
Mr. Brinkerhoff served for 24 years on active duty as an Army officer. During the period 1950 to 1959, he was a platoon leader, company commander, and operations officer in Engineer troop units in Okinawa, Korea, the United States and Germany. From 1959 to 1963 he was an instructor in astronomy, astronautics, and geography at the United States Military Academy. In 1963 he served as Deputy Chief of the United States Military Mission to the Republic of Mali, West Africa.
[snip]
What Col. Brinkerhoff did is not legal interpretation. He simply changed the words of a statute to make himself feel good. His authorship appears utterly incompetent.
The previously cited author, Danielle Crockett states,
This paper argues that the amendment to the Insurrection Act does not affect the President’s existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder.
Miss Crockett's paper is about the correct source of power, the Insurrection Act, and correctly assesses the effect of the amendment thereto — not much. What Congress is able to authorize regarding civil disturbances is limited by the Constitution.
Some people have a concern about giving a president the sole power to send troops to restore order and civil rights as some parts of the Insurrection Law seem to do.
The Insurrection Act does not do that, and such an interpretation of what it does say would be repugnant to the U.S. Constitution.
If Congress has changed Posse Comitatus such that a president can no longer take quick action when riots are running rampant in a state, destroying property and injuring and killing people, and the state fails to control them, then the country has no quick way to stop the outrage and protect people and their property when the governor (or a split Congress), for whatever reason, looks the other way and lets the riots proceed.
This is just a fundamental misunderstanding of the Posse Comitatus Act which is a criminal statute codified in Title 18 with all the other criminal statutes.
It is the Insurrection Act, as amended several times, which states the conditions under which the president use military force to enforce the Federal laws, or to assist the States with civil disturbances, as their request.
At 10 U.S.C. §253 (formerly 10 U.S.C. 333) it states:
"The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection;
[...]
The President is not prevented from taking action if Federal laws are being interfered with, or under the other conditions stated. For purely domestic disputes within a state, he requires a state request. The original Framers were quite leery about giving authority for the use of military against a sovereign state and quite deliberately limited such authority.
Danielle Crockett, The Insurrection Act and Executive Power to Respond with Force to Natural Disasters at 56:
CONCLUSION“It was never the purpose of the Constitution . . . that the militia should be sent to execute the laws, merely because they are not being at all times diligently executed or perfectly enforced in the particular area in question.”284 Despite critics’ fears, however, the amended Insurrection Act does not demonstrate any dangerous intent on the part of Congress or of the Bush Administration. Nonetheless, the amendment does indicate a general misunderstanding of the Insurrection Act’s historical meaning and application. While this failure reflects poorly on Congress, the Act’s amendment was not, in the words of one critic, “a stealth maneuver . . . [that] will actually encourage the President to declare federal martial law.”285
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There is no provision of constitutional or federal law which authorizes the imposition of martial law. It is not so much a legal system as it is the will of a military leader.
martial law. (1933) 1. The law by which during wartime the army, instead of civil authority, governs the country because of a perceived need for military security or public safety. • The military assumes control purportedly until civil authority can be restored. 2. A body of firm, strictly enforced rules that are imposed because of a perception by the country’s rulers that civil government has failed, or might fail, to function. • Martial law is usu. imposed when the rulers foresee an invasion, insurrection, economic collapse, or other breakdown of the rulers’ desired social order.“Martial law is the public law of necessity. Necessity calls it forth, necessity justifies its exercise, and necessity measures the extent and degree to which it may be employed. That necessity is no formal, artificial, legalistic concept but an actual and factual one: it is the necessity of taking action to safeguard the state against insurrection, riot, disorder, or public calamity. What constitutes necessity is a question of fact in each case.” Frederick B. Wiener, A Practical Manual of Martial Law 16 (1940).
“[T]he term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment. See U.S. v. Diekelman, 92 U.S. 520, 526, 23 L.Ed. 742. In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: ‘The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. ... In this country it is still worse.’ 8 Op. Atty. Gen. 365, 367. What was true in 1857 remains true today.” Duncan v. Kahanamoku, 327 U.S. 304, 315, 66 S.Ct. 606, 611 (1946) (Black, J.).
Black's Law Dictionary, 11th Ed.
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But sending in troops is not declaring habeas corpus. It is sending troops to restore order and protect the people. A president does not have the power to suspend habeas corpus on his own. Congress has to suspend habeas corpus or authorize the president to do it (sorry, Lincoln, you were wrong).
Lincoln purported to delegate his (non-existent) power to suspend the privilege of the writ of habeas corpus to military officers who could then further delegate said (non-existent) power. While the power of Congress is to suspend the privilege of the writ, Lincoln and company purported to suspend issuance of the writ itself. The write should always continue to issue, demanding that the body be produced to the court. Evidence that the privilege has been suspended would be a satisfactory answer to the court and the body would not then need to be produced before the court. General Keim in Pennsylvania first suspended the writ in Maryland, leading to the famous Merryman case. General Cadwallader, in possession of John Merryman, neither appeared nor produced Merryman. The first nationwide suspension was signed by Stanton, not Lincoln. Lincoln also got around to doing it personally, and Congress never approved those initial acts, regardless of how many Lincoln ahistorians spin subsequent acts of Congress. There was no effective way to spin a general's power to suspend the privilege of the writ of habeas corpus, or to spin his power to delegate his power to others.
You ended the last post by mentioning the Merryman case. We non-lawyers do get "suspend the privilege of the writ" mixed up with "suspend the writ."
That case has been argue up, down, and sideways on FreeRepublic. In the past there were arguments about whether Taney issued the writ to General Cadwalader sitting as a judge of the District Court or whether Taney issued it as the Chief Justice of the Supreme Court. The latter is correct, though he did file it in the District Court in Baltimore so that Cadwalader could have easy access to it.
Years ago I posted the following that I found in the Baltimore Sun newspaper of May 29, 1861:
"Chief Justice Taney, upon taking his seat on the bench, said that he desired to state that his associate, Judge Giles, of the Circuit Court, was present with him yesterday by his invitation, because he desired to avail himself of his counsel and advice in so important a case. The writ of habeas corpus was ordered by him as Chief Justice of the Supreme Court of the United States, consequently Judge Giles could not act with him in the case."
That was also mentioned in a 1935 book by Carl Brent Swisher (which I recently obtained a 1961 reprint of). The book was entitled, "Roger B. Taney." On page 551 Swisher says, "As he [Taney] took his place, he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States."
I have also found in a couple of old newspapers that General Cadwalader's mansion was destroyed by the Baltimore rioters a month or so before Merryman was arrested. From the April 23, 1861, Memphis Daily Appeal:
It is reported that Gen. Cadwalader's mansion, nineteen miles from Baltimore, has been destroyed.
And from the April 22, 1861, Public Ledger and Transcript of Philadelphia:
Wilmington, April 20th. General Cadwalader's residence at Magnolia Station, on the Philadelphia and Wilmington Railroad, nineteen miles from Baltimore, was burned this morning by the rioters.
In the past there were arguments about whether Taney issued the writ to General Cadwalader sitting as a judge of the District Court or whether Taney issued it as the Chief Justice of the Supreme Court. The latter is correct, though he did file it in the District Court in Baltimore so that Cadwalader could have easy access to it.
Yes, that was CJ Taney acting as Chief Justice in-chambers. I generally terminate any dispute on that by producing a link to Taney's handwritten opinion. That, combined with the Baltimore Sun quote is rather conclusive evidence. One very minor correction — you mistakenly cited the District Court rather than the Circuit Court.
That was also mentioned in a 1935 book by Carl Brent Swisher (which I recently obtained a 1961 reprint of). The book was entitled, "Roger B. Taney."
I have a first reprint edition of Swisher's book from June 1936. I also have an 1876 copy of Samuel Tyler's Memoir of Roger Brooke Taney, LL.D., 2nd Ed.; and a 1965 first edition of Walker Lewis' Without Fear or Favor. All provide interesting history.
As an interesting tidbit of Civil War era history, there is E. Merton Coulter, William Montague Browne (1967). An interesting biography, sort of. Browne was an aide-de-camp to Jefferson Davis, Assistant Secretary of State, and later the first Professor of History and Political Science at the University of Georgia. Browne arrived from Ireland and the bio of his time in America was researched before having folks in Europe research his time there. They could not track his existence prior to his arrival in the States. Nobody knows who the heck he was.
I hadn't heard about Cadwalader's mansion having been burned down.
On the very slight possibility that you have not seen it, there is Lamon's third book, The Life of Abraham Lincoln as President, A personal account by Lincoln's Bodyguard Ward Hill Lamon, Edited by Bob O'Connor, discovered in 2007 and published in 2010. Lamon recited the conclusion of the Merryman opinion and continued at page 341:
Mr. Lincoln could not be made to see that it was his duty to enforce the laws in that way. His highest duty, he thought, was to suspend the technicalities of the law and if need be, to totally disregard all law on the statute book if necessary to preserve the life of the nation. This decision of the chief justice at this time was most embarrassing to the war powers then being exercised. The legal operations of the civil authorities had not been suspended by the declaration of martial law, and apprehended conflicts of authority would greatly embarrass the military operations of the government. At no point was a greater field for such obstruction than in Baltimore and Maryland. After due consideration, the administration determined upon the arrest of the chief justice. A warrant or order was issued for his arrest. Then arose the question of service. Who would make the arrest and where should be his imprisonment?It was finally determined to place the order of arrest in the hands of the United States Marshal of the District of Columbia. This was done by the president with instruction by him to use the marshal’s own discretion about making the arrest unless he should receive further orders from Mr. Lincoln. This writ was never executed, and the marshal never regretted the discretionary power delegated to him in the exercise of his official duty. The power of the president for making arbitrary arrests became at this time a question of greater importance.
Of course, Lamon was the marshal at the time.
I did a quick online search this morning of newspapers of that time in the Library of Congress's Chronicling America web site. I wanted to find additional details, if there were any, to those in the two short articles I quoted above. I had found those two short articles on rolls of microfilm.
The New York Daily Tribune of April 23, 1860 reported a lot of what was going on in Maryland at the time in columns 4, 5, and 6. Here was the little it said about Cadwalader's mansion [Link]. If your mouse has a wheel, you can easily use the wheel to enlarge the newspaper to make the text more readable, or I gather that you can use other means to enlarge the paper as well.
The residence of Gen. George Cadwalader, of Philadelphia, at Magnolia, in Harford County, nineteen miles north of Baltimore, was burned by the same party, who seemed to be anxious to glut their vengeance upon the property of a man whose only fault was that he was true to the Constitution and the Union of his country.
I was not aware of Lamon's third book, thanks. I do have Lamon's "Recollections of Abraham Lincoln." It doesn't say anything about Taney that I could find, but it did discuss Lamon's visit with the Governor of South Carolina in March, 1861. I do have George William Brown's (the Mayor of Baltimore) book, "Baltimore & The Nineteenth of April, 1861," where Taney mentioned to Brown that Taney's "own imprisonment had been a matter of consultation."
Brown's book also says the following:
The suspension of the writ of habeas corpus, by order of the President, without the sanction of an Act of Congress, which had not then been given, was one of the memorable events of the war.On the 4th of May, 1861, Judge Giles, of the United States District Court of Maryland, issued a writ of habeas corpus to Major Morris, then in command of Fort McHenry, to discharge a soldier who was under age. Major Morris refused to obey the writ.
. . .
On the 25th of May, Mr. John Merryman, of Baltimore County, was arrested by order of General Keim, of Pennsylvania, and confined in Fort McHenry. The next day (Sunday, May 26th) his counsel, Messrs. George M. Gill and George H. Williams, presented a petition for the writ of habeas corpus to Chief Justice Taney, who issued the writ immediately ...
My understanding is that Judge Giles had advised Merryman's attorney that he should go to Washington to talk to Taney about Merryman's case, which the attorney apparently did. Giles had run into that May 4 blockage of habeas corpus, and knew that he [Giles] couldn't overcome it. Indeed even Taney couldn't overcome it, but Taney's brilliant Ex Parte Merryman order gives me goosebumps.
When Ben Butler was promptly removed from command in Baltimore, his relief was Cadwalader.
My understanding is that Judge Giles had advised Merryman's attorney that he should go to Washington to talk to Taney about Merryman's case, which the attorney apparently did. Giles had run into that May 4 blockage of habeas corpus, and knew that he [Giles] couldn't overcome it. Indeed even Taney couldn't overcome it, but Taney's brilliant Ex Parte Merryman order gives me goosebumps.
I was aware of Judge Giles and the prior Mullen case from a different source.
Brian McGinty, The Body of John Merryman, (2011), pp. 78-79, 211
Why did Gill and Williams bring Merryman’s petition to Roger Taney? The attorneys could have brought it to Judge Giles in Baltimore, for the district judge had jurisdiction to hear petitions for habeas corpus and ample legal power to grant them.16 In fact, Giles had already acted on at least one petition for habeas corpus related to Fort McHenry. On May 2 the parents of John George Mullen, a soldier at the fort, had petitioned Giles for a writ of habeas corpus alleging that their son was under eighteen years of age, that he had enlisted in the U.S. Army without their consent, and that he was thus entitled to be discharged from Army custody. The writ was served on W. W. Morris, an army major then commanding McHenry. When he read the writ, Morris returned it to the marshal who brought it to him, saying “that he would see the Court and the Marshal damned before delivering up one of his men.”17 Morris refused to appear in answer to the writ, prompting Giles to order an attachment against him. Morris sent Giles a respectful but defiant letter in which he denounced the violence in Baltimore and argued that, in the hands of an “unfriendly power,” the writ of habeas corpus could be used to “depopulate” Fort McHenry and put it at the mercy of a “Baltimore Mob.” Because there was so much antimilitary hostility in Baltimore, the major did not feel it was safe for him to appear publicly. “I think it your duty,” he told the judge, “to sustain the federal military and to strengthen their hands instead of endeavoring to strike them down.”18 Giles replied by saying that the power to “suspend” habeas corpus was “a power which in my opinion belongs to Congress alone” (but Morris had not claimed that habeas had been “suspended”). It was the first time in his thirty-three years at the bar that Giles had seen a writ of habeas corpus defied. But, bowing to the inevitable, he declined to pursue further enforcement against the major and sent the papers in the case to William Meade Addison, the U.S. district attorney in Baltimore, who in turn forwarded them to U.S. Attorney General Edward Bates in Washington.1917. Affidavit of J. Gittings, May 2, 1861, Attorney General’s Papers, National Archives, as quoted in Anderson, “The Body of John Merryman,” 137n3.
18. Morris to Giles, May 6, 1861, Attorney General’s Papers, National Archives, as quoted in Swisher, The Taney Period, 844.
19. Baltimore Sun, May 6, 1861; Swisher, The Taney Period, 844; Scharf, History of Baltimore City and County, 131.
That’s baloney. These statues were erected as symbols of reconciliation at a time when the nation was torn apart. Suppose the American government after the war had said “We hate the south and what they stood for. We are going to erase all evidence of their existence.” That would never work. It won’t stop at statues. It stops at genocide. Honoring the other side made us a stronger nation.
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