Abstract

This Note will argue that the Posse Comitatus Act ("PCA") should be replaced with a law that (1) clearly establishes what assistance the military can provide to civilian authorities, (2) abandons the confusing and unnecessary "execute the laws" language of the PCA, and (3) explicitly recognizes the dual constitutional roles of the President and Congress when it comes to authorizing domestic military involvement. This Note will show that, though the confusion surrounding the PCA has successfully limited the domestic involvement of the military in law enforcement, the success has come at the cost of preventing our leaders from taking clear and decisive actions when necessary to protect American lives.

To explain the extent of the confusion surrounding the PCA, Part I of this Note will examine the PCA's enigmatic history. Part II will discuss the three main judicial tests for interpreting what constitutes a PCA violation and will show that each test fails to establish a workable standard for what type of military action qualifies as "execut[ing] the laws" under the PCA. Part III will show that the failure of courts to apply a constitutional framework to PCA analysis has made these tests unworkable. Part IV will examine how Congress's attempts at clarifying the PCA have instead created more confusion by failing to identify a clear and consistent standard for applying the PCA's "execute the laws" language. Part V will show that the military has been somewhat effective in creating regulatory enactments to implement the PCA, but has been less successful at applying the PCA in practice. Finally, Part VI will propose an alternative to the PCA that will ensure congressional oversight of domestic military use, eliminate the confusion inherent to the "execute the laws" provision of the PCA, reaffirm the President's constitutional power to protect our nation, and provide clear guidance for civilian law enforcement officials, the military, and courts in effectuating the goal of limiting domestic military involvement.

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