SO legal beagles...

[Ike]

I have a question for y'all....

below is sec 1076 of HR 5122, the defense authorization act of 2007. Am I reading this correctly that this effectively cancels posse comitatus?


SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.

(a) Use of the Armed Forces Authorized-

(1) IN GENERAL- Section 333 of title 10, United States Code, is amended to read as follows:

`Sec. 333. Major public emergencies; interference with State and Federal law

`(a) Use of Armed Forces in Major Public Emergencies- (1) The President may employ the armed forces, including the National Guard in Federal service, to--

`(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--

`(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and

`(ii) such violence results in a condition described in paragraph (2); or

`(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).

`(2) A condition described in this paragraph is a condition that--

`(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, 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 or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

`(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

`(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

`(b) Notice to Congress- The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.'.

(2) PROCLAMATION TO DISPERSE- Section 334 of such title is amended by inserting `or those obstructing the enforcement of the laws' after `insurgents'.

(3) HEADING AMENDMENT- The heading of chapter 15 of such title is amended to read as follows:

`CHAPTER 15--ENFORCEMENT OF THE LAWS TO RESTORE PUBLIC ORDER'.

(4) CLERICAL AMENDMENTS- (A) The tables of chapters at the beginning of subtitle A of title 10, United States Code, and at the beginning of part I of such subtitle, are each amended by striking the item relating to chapter 15 and inserting the following new item:

331'.

(B) The table of sections at the beginning of chapter 15 of such title is amended by striking the item relating to sections 333 and inserting the following new item:

`333. Major public emergencies; interference with State and Federal law.'.

(b) Provision of Supplies, Services, and Equipment-

(1) IN GENERAL- Chapter 152 of such title is amended by adding at the end the following new section:

`Sec. 2567. Supplies, services, and equipment: provision in major public emergencies

`(a) Provision Authorized- In any situation in which the President determines to exercise the authority in section 333(a)(1)(A) of this title, the President may direct the Secretary of Defense to provide supplies, services, and equipment to persons affected by the situation.

`(b) Covered Supplies, Services, and Equipment- The supplies, services, and equipment provided under this section may include food, water, utilities, bedding, transportation, tentage, search and rescue, medical care, minor repairs, the removal of debris, and other assistance necessary for the immediate preservation of life and property.

`(c) Limitations- (1) Supplies, services, and equipment may be provided under this section--

`(A) only to the extent that the constituted authorities of the State or possession concerned are unable to provide such supplies, services, and equipment, as the case may be; and

`(B) only until such authorities, or other departments or agencies of the United States charged with the provision of such supplies, services, and equipment, are able to provide such supplies, services, and equipment.

`(2) The Secretary may provide supplies, services, and equipment under this section only to the extent that the Secretary determines that doing so will not interfere with military preparedness or ongoing military operations or functions.

`(d) Inapplicability of Certain Authorities- The provision of supplies, services, or equipment under this section shall not be subject to the provisions of section 403(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b(c)).'.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:

`2567. Supplies, services, and equipment: provision in major public emergencies'.

(c) Conforming Amendment- Section 12304(c)(1) of such title is amended by striking `No unit' and all that follows through `subsection (b),' and inserting `Except to perform any of the functions authorized by chapter 15 or section 12406 of this title or by subsection (b), no unit or member of a reserve component may be ordered to active duty under this section'.

[SicEmBaylor]

That's pretty much correct and it's horrifying.

It has to conform to those instances addressed in the legislation, but you could take a pretty broad interpretation of some of that.

[Ike]

That's pretty much correct and it's horrifying.

It has to conform to those instances addressed in the legislation, but you could take a pretty broad interpretation of some of that.

thats what I thought. It also appears to leave the sole power to determine if it conforms to those instances addressed in the hands of the president...

[SicEmBaylor]

It should be pointed out though that while I do support Posse Comitatus it was an act of Congress that established it and the constitution itself neither implicitly nor explicitly prevents using the military in such a role.

One of the very real dangers here is the use of the military to deprive the states (and by extension the individual) of their reserved powers and rights...........................again.

[SicEmBaylor]

thats what I thought. It also appears to leave the sole power to determine if it conforms to those instances addressed in the hands of the president...

Correct, though it does require the President to justify the act to Congress who could stop it. That doesn't comfort me in the least bit though.

[Ike]

It should be pointed out though that while I do support Posse Comitatus it was an act of Congress that established it and the constitution itself neither implicitly nor explicitly prevents using the military in such a role.

I am aware of that...but I tend to think that a law that has lasted that long probably had good reason to do so...


One of the very real dangers here is the use of the military to deprive the states (and by extension the individual) of their reserved powers and rights...........................again.
Oddly, I am in near perfect agreement with you on this issue...

[Vaevictis]

I bet Goldwater and Reagan are spinning in their graves.

[Vaevictis]

Of course, I bet that they were spinning already. They're just spinning a little faster now.

[SicEmBaylor]

I bet Goldwater and Reagan are spinning in their graves.

In that order.

[Ike]

BTW, this was signed into law last week

[Vaevictis]

Well, Goldwater because of his belief in states rights.

Reagan because things we used to indict the Soviets for are things we're implementing now, one by one. Many of the things that made the "Evil Empire" what it was are things we're adopting as standard now.

[SicEmBaylor]

BTW, this was signed into law last week
One has to assume that with this President since he never vetoes anything.

[SicEmBaylor]

Well, Goldwater because of his belief in states rights.

Reagan because we used to indict the Soviets for are things we're implementing now, one by one. Many of the things that made the "Evil Empire" what it was are things we're adopting as standard now.

I totally agree.

I was arguing with a UT-CR member a few months ago who told me, "you know Goldwater wasn't really a conservative." My God....I really detest everything that has become of the conservative movement and down right hate what has happened to the GOP.

I wish to God I could find a viable party that suited me.

[Vaevictis]

Irony of irony is that it's the Republicans doing it.

How many Republicans would cheer if they managed to eliminate the Democratic party entirely, leaving us with a one party system?

Then all we'd have to do is implement centralized economic planning, and we'd be virtually indistinguishable from the Soviets.

[SoonerBorn68]

Irony of irony is that it's the Republicans doing it.

How many Republicans would cheer if they managed to eliminate the Democratic party entirely, leaving us with a one party system?

Then all we'd have to do is implement centralized economic planning, and we'd be virtually indistinguishable from the Soviets.

:rolleyes:

[Okla-homey]

While you guys are waiting on the "black helicopters" and federal "jack-booted thugs" to kick down your doors, please realize that posse is just fine. It has not been "cancelled."

The language in this bill is completely consistent with the historic application of federal military power when states refuse to enforce federal law or in instances of declared emergencies/disasters. (E.g. Earliest was during the "Whiskey Rebellion" which you can "Google" if interested; followed by that minor dust-up in the first half of the 1860's over the existence of slavery; the 101st Airborne Division deployed to Little Rock AR when the fine folks there refused to racially integrate their gubmint schools peacefully and the governor refused to deal with it; various Army and Marine units deployed to LA to help put down the "Rodney King" riot; Use of federal forces to deal with the midwest Mississippi River flooding back in '91 or so; use of federal forces to fight Far West wildfires; Hurricane Katrina aftermath.)

"Horrifying" indeed.:cool:

[SicEmBaylor]

While you guys are waiting on the "black helicopters" and federal "jack-booted thugs" to kick down your doors, please realize that posse is just fine. It has not been "cancelled."

The language in this bill is completely consistent with the historic application of federal military power when states refuse to enforce federal law or in instances of declared emergencies/disasters. (E.g. Earliest was during the "Whiskey Rebellion" which you can "Google" if interested; followed by that minor dust-up in the first half of the 1860's over the existence of slavery; the 101st Airborne Division deployed to Little Rock AR when the fine folks there refused to racially integrate their gubmint schools peacefully and the governor refused to deal with it; various Army and Marine units deployed to LA to help put down the "Rodney King" riot; Use of federal forces to deal with the midwest Mississippi River flooding back in '91 or so; use of federal forces to fight Far West wildfires; Hurricane Katrina aftermath.)
"Horrifying" indeed.:cool:


I have no problem with Federal troops being deployed in examples such as the river floods, natural disasters, etc. so long as it's AT THE REQUEST of the State governor. I'm not a big fan of the Feds otherwise invading a state.

[Okla-homey]

I'm not a big fan of the Feds otherwise invading a state.

Nor am I, but, if a state is unwilling to observe "the Supreme Law of the Land" as legislated by our elected representatives assembled in Congress, or as interpreted by the Federal courts...I say, fight's on!

After all, had the "feds not 'invaded' [several] states," people with the means could still own other people, a lot of folks would have been denied the franchise, and it would still be possible for a state to declare a vast segment of American society "second-class" citizenship by legislative fiat.

Face it man. It's called Federalism. IOW, states are free to make their own laws and be governed by them, unless those laws are violative of the Constitution or federal statutes.

[jk the sooner fan]

invaded a state

jeezus h christo....talk about missing it

[1stTimeCaller]

invaded a state

jeezus h christo....talk about missing it

I know, it was more like a town...


I have no idea what we're talking about.

[Okla-homey]

invaded a state

jeezus h christo....talk about missing it

He has delusions of confederateness. I hope for his sake it's just a phase and he grows out of it.;)

[Ike]

Nor am I, but, if a state is unwilling to observe "the Supreme Law of the Land" as legislated by our elected representatives assembled in Congress, or as interpreted by the Federal courts...I say, fight's on!

After all, had the "feds not 'invaded' [several] states," people with the means could still own other people, a lot of folks would have been denied the franchise, and it would still be possible for a state to declare a vast segment of American society "second-class" citizenship by legislative fiat.

Face it man. It's called Federalism. IOW, states are free to make their own laws and be governed by them, unless those laws are violative of the Constitution or federal statutes.

My concern here is a little bit different than SicEm's, and while I admit that I'm not as boned up on the history involved, It seems to me that in most instances post passage of posse (even before it was passed really) the powers outlined in the insurrection act gave the president the ability to act in this manner where violence or circumstances beyond the ability of state law enforcement prevented federal law from being enforced anyway. Now it seems that those presidential powers have been expanded in a way that I'm not entirely comfortable with.

Yes, I do understand that had he had this law in effect during katrina, The President would have been able to respond in a more efficient manner (I think anyway), but I'm not entirely sure that all of this is necessary.

[Okla-homey]

My concern here is a little bit different than SicEm's, and while I admit that I'm not as boned up on the history involved, It seems to me that in most instances post passage of posse (even before it was passed really) the powers outlined in the insurrection act gave the president the ability to act in this manner where violence or circumstances beyond the ability of state law enforcement prevented federal law from being enforced anyway. Now it seems that those presidential powers have been expanded in a way that I'm not entirely comfortable with.

Yes, I do understand that had he had this law in effect during katrina, The President would have been able to respond in a more efficient manner (I think anyway), but I'm not entirely sure that all of this is necessary.

World History 101: A people must either trust their sovereign or overthrow him. There is really no practical alternative.

[Vaevictis]

World History 101: A people must either trust their sovereign or overthrow him. There is really no practical alternative.

I thought the whole philosophy behind the Constitution is that we don't trust the sovereign ;)

[Oldnslo]

http://www.co.larimer.co.us/sheriff/posse/pic00007.jpg

Thanks, Trigger, but I said, "pOsse!"

[Vaevictis]

The main problem I have with the new law is that it appears to me as if the President now has the ability to act on his own authority, and that it now takes a specific act of Congress to stop him from continuing.

Prior to this, my understanding is that it would require a specific act of Congress to permit it.

In other words, where it previously required the active authorization of Congress to allow it, it now requires the active disapproval of Congress to disallow it.

I would be somewhat more comfortable if the law called for the President to need a specific authorizing act within a certain amount of time after acting.

[Tulsa_Fireman]

http://www.co.larimer.co.us/sheriff/posse/pic00007.jpg



I'd hit it.

[Okla-homey]

The main problem I have with the new law is that it appears to me as if the President now has the ability to act on his own authority, and that it now takes a specific act of Congress to stop him from continuing.

Prior to this, my understanding is that it would require a specific act of Congress to permit it.

In other words, where it previously required the active authorization of Congress to allow it, it now requires the active disapproval of Congress to disallow it.

I would be somewhat more comfortable if the law called for the President to need a specific authorizing act within a certain amount of time after acting.

The President, acting in his constitutional capacity as commander-in-chief, doesn't have to ask Congress for permission before deploying federal military forces to any destination on the planet.

Now, that said, in the wake of the Vietnam War, in 1973, Congress passed a resolution commonly called the "War Powers Resolution." (Title 50, Ch. 33 Sec's 1541-1548.) I believe that is the "authorizing act" to which you're referring. Its most significant aspect is it purports to limit presidential authority to deploy troops. In sec. 1543 it says the pres. must submit a report to Congress within 48 hours of deploying troops. In sec. 1544 it says that the forces come home automatically after 60 days if Congress doesn't "buy" the president's justification for the deployment.

Here's the thing though, the resolution has never been observed by a President, and Congress has never tried to hold any president accountable for it. In '99 a congressman sued in fed. court to stop Clinton's use of forces in the Balkans, but the case was dismissed.

The general feeling among constitutional scholars is that the resolution is a "paper tiger" because Congress has no means of enforcing the resolution short of suing in federal court, and the federal courts, as one did in 1999, will probably always hold that lawsuits based on the War Powers Resolution must be dismissed because they invoke the unconstitutional notion that Congress can trump presidential commander-in-chief authority.

Bottomline, the only thing Congress can do if it doesn't like a deployemnt is refuse to pay for it using its constitutional control of the military purse strings. Practically speaking, that is a non-starter because once kids are deployed, Congress isn't going to leave them to die on the vine with no bullets or beans.

[Vaevictis]

I was actually referring to the Posse Comitatus Act, which to my understanding prohibited the President from deploying the federal armed forces for the purpose of law enforcement unless authorized by Congress (or obviously the Constitution, if applicable).

This new law, according to my understanding, gives a standing authorization at the President's discretion.

I was not, in fact, referring to the War Powers Act as pertinent in this case, but was suggesting that I would prefer something like it. The difference between requiring Congress to authorize such a deployment and requiring Congress to prohibit such a deployment is subtle but significant.


The President, acting in his constitutional capacity as commander-in-chief, doesn't have to ask Congress for permission before deploying federal military forces to any destination on the planet.

No, but Congress can criminalize the use of federal funds for such deployments without Congressional approval, yes? That would yield approximately the same result. (academic question only, not really an advocacy)

EDIT:



The general feeling among constitutional scholars is that the resolution is a "paper tiger" because Congress has no means of enforcing the resolution (...)

Also academically, but Congress could also achieve the same result indirectly by impeachment, could it not? (ie, repeated impeachment proceedings until a more pliable President is in office -- trumping up charges is not all that difficult if Congress is determined.)

[Okla-homey]

No, but Congress can criminalize the use of federal funds for such deployments without Congressional approval, yes? That would yield approximately the same result. (academic question only, not really an advocacy)

I think that would still invoke the specter of "separation of powers" &/or "political question" and no court would hear it.

I also believe if the President orders the military to deal with a domestic problem by invoking "national security" implications, he's probably "bulletproof." Similar to Congresses use of the "dormant Commerce Clause" to get in the middle of purely economic issues by citing a nexus with "interstate commerce."

Bottomline on posse IMHO, as you know, Congress has no independent enforcement mechanism, except for impeachment of course.