The Wall - Going Military

[ConstitutionCowboy]

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

The Congress has "provided forth" certain restrictions, including the Posse Comitatus Act. It's not a blank check.

I was referring to the use of the militia as proscribed in the Constitution. The regular military is not authorized in the Constitution for use in enforcing the law, but it certainly can be used to protect our borders. The Posse Comitatus Act only restricts the regular Army and Air Force from engaging in law enforcement which is actually redundant since the Constitution does not grant power to use the regular military for law enforcement as I noted.

Woody

 

[Dave70968]

I was referring to the use of the militia as proscribed in the Constitution. The regular military is not authorized in the Constitution for use in enforcing the law, but it certainly can be used to protect our borders. The Posse Comitatus Act only restricts the regular Army and Air Force from engaging in law enforcement which is actually redundant since the Constitution does not grant power to use the regular military for law enforcement as I noted.

Woody

Right, but the Constitution allows the Congress to prescribe (sorry to pick on the word, but the one change in letter makes it mean exactly the opposite) how the militia can be called up. Congress passed the Posse Comitatus Act, which does cover the National Guard when it's acting in a federal capacity. I actually had this discussion at length with my dad a couple of weeks ago, and he's a retired Air National Guard JAG, so we went into it in quite some detail. Guard members are what's known as "dual-hatted," serving as members of both the state forces and the national forces. When they're wearing their federal hats, they're subject to federal rules, including the Posse Comitatus Act. Thus, in order for them to act in law enforcement roles, they'd have to be acting in their state roles, under the command of their respective governors. The governors could coordinate amongst themselves, and even with fed.gov, but they'd need to be nominally independent of the federal command structure. We didn't discuss it, but I suspect they'd also need to be running on state, not federal, funds.

 

[MacFromOK]

So... what branch of the military has the authority to stop armed invaders at our borders?

 

[Dave70968]

So... what branch of the military has the authority to stop armed invaders at our borders?

Depends on how we're treating them. If we're treating them as criminals, then law enforcement; if we're treating them as an invading military, under the command of their respective government(s)--and we're willing to acknowledge that, with all its attendant consequences--then any branch of the military is fine. But those "attendant consequences" include calling it out as an act of war and either fighting same or rolling over and accepting it on the world stage.

So far, we haven't been willing to do that; I suspect that's still the case. Easier to just ignore it rather than force the issue.

 

[MacFromOK]

So armed guerillas (not under the command of their government) could practically invade the country while Congress decides what to do with them?

How encouraging. :/

 

[Dale00]

So armed guerillas (not under the command of their government) could practically invade the country while Congress decides what to do with them?

How encouraging. :/

The obtuse and vocal contrarylawyers would be jailed or put under house arrest while appropriate measures were taken.

 

[caojyn]

So armed guerillas (not under the command of their government) could practically invade the country while Congress decides what to do with them?

How encouraging. :/

Hail Cobra!

 

[Dave70968]

So armed guerillas (not under the command of their government) could practically invade the country while Congress decides what to do with them?

How encouraging. :/

Remember, the Posse Comitatus Act is just legislation; it can be amended or stricken by Congress just as easily as it was enacted. Also, Congress retains the ability to declare war. If the threat is that big, there would be support for changing the law. And the state governors--who would not have their hands tied--would be able to react immediately, so Congress would have the time it needed.

Also, if the threat were that big, it would likely not be without support from a nation-state, so there's that.

 

[davek]

Operating under the Department of Homeland Security, the U.S. Coast Guard is not covered by the Posse Comitatus Act. While the Coast Guard is an “armed service,” it also has both a maritime law enforcement mission and a federal regulatory agency mission.
Interesting to note, the US Navy is not under the Posse Comitatus Act either.
The Navy has rules within its organization to limit itself and the Marine Corps to the same standards of the Act.

I occurs to me that it might be cheaper to dig a ditch (or moat or whatever you want to call it) and have the Coast Guard blockade it instead of building a wall.

 

[MacFromOK]

Also, if the threat were that big, it would likely not be without support from a nation-state, so there's that.

Regarding Mexico... I'm not so sure the drug cartels don't have more power than the government, especially if they band together.

Am enjoying the discussion guys. Really appreciate all the legal (and other) input.