Posse Comitatus – Common Law vs. Federalism

Posse Comitatus – Common Law vs. Federalism

In America, there are two words that are used very commonly and frequent these days related to common law, the law of retaliation and the laws of revenge. These words are ‘vigilante’ and ‘posse.’ Without a doubt, these words are keywords or flag words our government monitors closely on social media and other venues. There are reasons for such precautions as there is a sovereign citizen movement growing in America. This movement can be best described as ‘extreme anti-government’ ideology.

We know how this stuff started. We know the genesis of such ideas and discussions is the fact that our government is corrupt and has been corrupt for a very long time now and people are beginning to refuse their role in our society as the legitimate government to rule them. Without going into the conspiratorial areas and the socio-political aspects of this argument, the fact remains, there is a citizen movement growing that threatens legitimate government and spurs the establishment of a new government.

Many citizens are upset with Washington DC and how they sold out the country to foreign interest and sold their assets to countries rather than keeping the wealth at home. They are upset with the loss of job overseas, the trade agreements, the sale of our own minerals rights and water and more than ever, they are upset on the infringement of our privacy and our rights to conduct surveillance on us without warrants and justification.

Today, this conflict has risen to the level of retaliations, lawlessness, vigilante actions and pseudo-legal actions related racism and privacy rights. People are feeling condemned and are facing this problem with resistance and anger. Frankly speaking, there has been a tremendous anti-government movement growing in the 21^st Century that has countered what we used to call communism but is now labeled to be ‘socialism.’ However, the anger goes even further as the election of 2016 illustrates beyond constitutional issues of the Bill of Rights and specifically the findings or rulings of the United States Supreme Court.

The irony here is that some of these groups who opposed governmental policies and challenged its very legitimacy attempted with some success to ally themselves with the government. Private foundations, funded under non-profit organizations and non-governmental agencies are acting as agents for the government to impose their will on the people through legislative efforts to get the laws on the books that suit their needs.

Thus the argument of which government is the legitimate government comes to mind and this is where it gets messy. There are people and movements that claim our federal government has become obsolete and no longer legitimate. They question the authority  and the very nature of the executive, judicial and legislative branches and that they no longer represent the will of the people but the will of themselves. This protest movement is real and it's growing.

With arguments about the illegitimacy of income tax laws and now the fines imposed by Obamacare were easily expanded or altered to challenge the legitimacy of the government itself. This movement is growing and the ideologies of one of these movement groups, the Posse Comitatus, is becoming a daily household word in some states.

To further explain the laws of retaliation, revenge, common law and justice there are members of society who are grasping the rule of law as the rule by the people and not the federal government. Members of the Posse Comitatus take this illegitimacy one step further and insist and believe that the counties of our 50 states are the true seat of government.

They don’t deny the legal existence of the federal or state government but “believed that the county was the true seat of government in the United States and claimed that the county level was the highest authority of government in our Republic as it is closest to the people. The basic Posse manual stated that there had been "subtle subversion of the Constitution by various arms and levels of government, especially the judiciary.”

There was, in fact, a "criminal conspiracy to obstruct justice, disfranchise citizens and liquidate the Constitutional Republic of these United States." The Posse wanted to reverse this subversion and "restore" the Republic through unilateral actions by the people (i.e., the Posse) and actions by the county sheriff.

The sheriff, they argued, was the only constitutional law enforcement officer. Moreover, his most important role was to protect the people from the unlawful acts of officials of governments like judges and government agents. In time, the federal government passed a federal law that is clearly designed to separate the authority and powers belonging to the federal government in regards to using military personnel to enforce domestic policies inside the United States.

This separation of powers has been challenged and amended a few times since it became law and now partially stands as written. The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878, by President Rutherford B. Hayes. The purpose of the act – in concert with the Insurrection Act of 1807 – is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States.

It was passed as an amendment to an army appropriation bill following the end of Reconstruction era and was subsequently updated in 1956 and 1981. The Enforcement Acts, among other powers, allow the President to call up military forces when state authorities are either unable or unwilling to suppress violence that is in opposition to the constitutional rights of the people.

 The Act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force. While the Act does not explicitly mention the United States Navy and the United States Marine Corps, due to their being naval services, the Department of the Navy has prescribed regulations that are generally construed to give the Act force with respect to those services as well.

The Act does not apply to the Army and Air National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor.

The United States Coast Guard, which operates under the Department of Homeland Security, is not covered by the Posse Comitatus Act either, primarily because although the Coast Guard is an armed service, it also has both a maritime law enforcement mission and a federal regulatory agency mission.

In 2006, Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008). On September 26, 2006, President George W. Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition.

These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006. Section 1076 is titled "Use of the Armed Forces in major public emergencies."

It provided that: The President may employ the armed forces... to... 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... the President determines that... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such... a condition... so hinders the execution of the laws... 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... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act. It was originally written to limit Presidential power as much as possible in the event of insurrection, rebellion, or lawlessness. In 2011, President Barack Obama signed National Defense Authorization Act for Fiscal Year 2012 into law.

Section 1021(b) extended the definition of a "covered person", i.e., someone possibly subject to detention under this law, to include: A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. Section 1021(e) purports to limit the scope of said authority with the text, "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

Federal military personnel has a long history of domestic roles, including the occupation of secessionist Southern states during Reconstruction. The Posse Comitatus Act prohibits the use of federal military personnel to "execute the laws"; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to domestic law enforcement. As you can readily see, the conflict between the interpretation of the law is based on two different definitions setting up a conflict between the rights of the county versus the rights of the federal government.

In accordance, it still stands that as far as the law is concerned, the Sheriff is still the chief executive law officer of the county. This is where it gets vague as it is proposed that if the Sheriff refuses to carry out such duties to protect the people (aka posse) the people have the right to act on behalf of the law and enforce their common law rights. It is predictable that there will be an armed insurgency coming soon as the government tightens its rule and dominance over the populace against the will of the people.