If the United States is in a war fighting COVID-19, why don’t we activate the military to take over the situation? Some politicians have suggested it and even my students in our law class on National Security Law have raised the issue. It is a tempting thought. After all, the U.S. military is one of the most powerful entities in the world. It has command structure, personnel, material, and equipment at the ready. Why not?
There are two basic reasons which lawyers of experience (i.e. members of the Senior Lawyers Division) would answer.
The first is the Constitution of the United States. The framers of our Constitution were guided by a strong belief that the purpose of our military was to protect against foreign enemies. Civilian rule was made integral to our system of government.
The founders were wary of military enforcement of civilian law and suspension of personal (constitutional) liberties. A civilian was placed at the head of the military in Article II (the President) and Congress in Article I was given powers to govern the armed forces and to limit by appropriations. In addition, the Third Amendment forbid the quartering of soldiers. Our Courts have long recognized these constitutional limitations placed on military involvement in civilian affairs.
With that constitutional background, U.S. laws affecting the military provide the second basis. Congress early provided some exceptions in the event of insurrection, uprising, invasion, or threat to the country or to the states from external enemies. President Washington used the Insurrection Act to quell the Whiskey Revolt in 1792, but the military was only used for law enforcement on rare occasions, such as during the Civil War.
Currently our active duty military is covered by the Posse Comitatus Act, first enacted in 1878. It plays a key role in delineating exactly under what circumstances the military may and may not be used for the explicit purpose of enforcing domestic laws. An effort to expand this use of the military was enacted in 2007, in the aftermath of Hurricane Katrina, but quickly repealed the next year, following objections from governors, legal authorities, and military leaders.
There are exceptions to Posse Comitatus for the Coast Guard, for drug enforcement, and for nuclear events. The main exception is for National Guard Units while operating solely under state (Governor’s) control, but once federalized, the Guard exception is removed.
In general, the military can play an important role in supporting rapid and efficient relief efforts. These include providing rescue operations, medical assistance, and other physical operations requiring sophisticated logistical coordination and execution. But these skills are not law enforcement, and the military is barred from these activities. Most military leaders support these principles. They know that their main job and mission is proving national defense and not law enforcement, which is better left to civilian first responders.
After the events of Hurricane Katrina, the ABA studied the legal authorities available to guide the preparation and response to a catastrophic incident, whether from terrorism, accident, or natural causes. That study concluded that while there may have been failures of leadership, training, communication, and readiness, the laws in place, including those applicable to the military under Posse Comitatus, were adequate.
Our Nation needs a strong military which is focused on fighting our wars and protecting us from our enemies. In most instances, however, it does not need our military to replace our civilian law enforcement. As the Supreme Court has ruled in several cases, the military has a role but we adhere to the belief that “[I]t is an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.”