President Bush informed the nation, during a press conference, that he might seek to use the U.S. military to quarantine parts of the nation should there be a serious outbreak of the deadly avian flu that has killed millions of chickens and 60-some people in Southeast Asia. That's the second time Bush has expressed a desire to use the military for local policing. The first was in the wake of Hurricane Katrina. The Posse Comitatus Act (18 U.S.C. 1385) generally prohibits federal military personnel and units of the U.S. National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the U.S. Constitution or Congress.
Enacted during Reconstruction, the purpose of the Posse Comitatus Act was to severely limit the powers of the federal government to use the military for local law enforcement. Would Americans tolerate such a gigantic leap in the federalization of law enforcement? I'm guessing the answer is yes. In the name of safety, we've undergone decades of softening up to accept just about any government edict that our predecessors would have found offensive. Let's look at some of it.
The anti-smoking movement might be the beginning of the softening up process. They started out calling for reasonable actions like no-smoking sections on airplanes. Then it progressed to no smoking on airplanes altogether, then private establishments such as restaurants and businesses. Emboldened by the timidity of smokers, in some jurisdictions there are ordinances banning smoking in outdoor places such as beaches and parks. Then there are seatbelt and helmet laws that have sometimes been zealously enforced through the use of night vision goggles. On top of this, Americans accept government edicts on where your child may ride in your car. Americans sheepishly accepted all sorts of Transportation Security Administration nonsense. In the name of security, we've allowed fingernail clippers, eyeglass screwdrivers and toy soldiers to be taken from us prior to boarding a plane.
We've accepted federal intrusion in our financial privacy through the Bank Secrecy Act. Rep. Ron Paul, R-Texas, says, "More than 99.999 percent of those [who] had their privacy invaded were law-abiding citizens going about their own personal financial business." Most recently there's the U.S. Supreme Court Kelo decision, where the court held that local governments can take a private person's house and turn it over to another private person. Politicians have learned and become comfortable with the fact that today's Americans will docilely accept just about any legalized restraint on their behavior.
You say, "Hey, Williams, but it's the law!" In the late-1700s, the British Parliament enacted the Sugar Act, the Stamp Act and the Townshend Acts, and imposed other grievances that are enumerated in our Declaration of Independence. I'm happy that we didn't have today's Americans around at the time to bow before King George III and say, "It's the law." Respectful of the Posse Comitatus Act, President Bush has suggested that he'll ask Congress to amend the law to allow for the use of the U.S. military to enforce regional quarantines. Whether Congress amends the law or not, Bush has no constitutional authority to deploy military troops across the land. Why?
The U.S. Constitution's Article IV, Section 4 reads, "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." Coupled with the Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," this means short of an insurrection, the U.S. military must be invited by a state legislature or executive. Any federal law that violates these constitutional provisions is null and void and can only be enforced through fear, intimidation and brute military force.
Asymmetrical Politics: Republicans Act Like an Unruly Mob, Democrats Like a Regimented Army | Michael Barone