Posse Comitatus — A Refresher

You might be looking at tonight’s news — that the Trump administration plans to tap military lawyers to serve as temporary IJ — and find yourself thinking… can they do that? 

I don’t think so. And here’s why:

In 1878, Congress passed the Posse Comitatus Act, 18 U.S.C. § 1385: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space 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.” In layman’s terms, the U.S. military cannot engage in civilian law enforcement activities unless expressly authorized.

So, is adjudicating the same thing as “executing”? I would think so.

I’ve been scrolling this 2019 Department of Defense (DOD) list of activities that are prohibited by the Posse Comitatus Act. I don’t see adjudication squarely on it, but “questioning of potential witnesses” is indicated as a prohibited activity–significant because, as readers know, IJs routinely question witnesses.

This seems like an issue that will be headed to court.

-KitJ