Over the years, the United States - Mexican border characterized by a massive caravan of immigrants from Mexico to the U.S. heading north, and the U.S. government consider this caravan as an enormous threat to the disruption of trade. With the existence of President Trump's Administration, the government has deployed more than five thousand active-duty troops to the southern border. The deployment of the U.S. troops to the south of U.S. - Mexican border can be reasonable for the U.S. security purposes, but on the other hand, this deployment is illegal if it surpasses the law as far as Posse Comitatus Act of 1878 is concerned.
The presentation expounds on the illegality and legality of placing these U.S. active-duty troops along the U.S-Mexican southern border. Also, the presentation considers The Posse Comitatus Act of 1878 prohibits the use of U.S. military forces to perform the tasks of civilian law enforcement with the exception that the U.S. Congress can sometimes authorize the use of U.S. military forces to perform some functions during civilian law enforcement. This presentation also considers the role of U.S. Congress in upholding the Constitution
The U.S. Posse Comitatus Act Law
On June 18, 1878, the government of the United States through late President Rutherford B. Hayes enacted and signed "The Posse Comitatus federal Act" aimed at regulating the presidential power in direct use of troops of the armed forces for civilian law enforcement. In the case of the "United States v. Yunis, 681 F. Supp. 891 (D.D.C. 1988)," the court relied on The Posse Comitatus Act, which provides that, "Whoever, except in cases and under the circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air 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 this case, the court further observed that "The Posse Comitatus Act, 18 U.S.C.S. 1385 (1979)," is designed to "limit the direct active use of federal troops by civil law enforcement officers" to enforce the laws of the nation. Limiting military involvement in civilian affairs is basic to our system of government and the protection of individual constitutional rights."
In the case of "State v. Danko, 219 Kan. 490 of 1976, the court held that The Posse Comitatus Act, 18 U. S. C. S. 1385, expresses a policy that is for the benefit of the people as a whole, rather than a policy characterized as designed to protect the personal rights of individual citizens as declared in the Fourth Amendment. Application of the extraordinary remedy of exclusion is unnecessary as an added deterrent to the serious criminal sanctions provided in the Act."
According to the above two cases, the law of the United States clearly prohibits the use of any branch of the armed forces troops from being involved to perform the civilian law enforcement at all cost, except where necessary and this necessity must be expressly authorized by the Constitution of the United States or by the Act of Congress themselves.
My Position: Troops on the Border is illegal
The decision that led to the U.S. government sending the thousands of troops to the U.S.-Mexican to intercept migrants border through the aid of President Donald Trump applying for asylum is not just a political but also illegal.
The Constitution of the U.S states, "The Posse Comitatus Act" passed in 1878 does not allow the use of the armed forces troops to administer U.S. domestic laws, including laws relating to immigration. For this reason, the decision assented by President Trump in stationing the military forces to the southern border to implement the U.S. immigration law against the thousands of hopeless migrants from Central America through Mexico to apply for asylum is itself an unconstitutional order. For this reason, it contravenes The Posse Comitatus Act that prohibits the involvement of U.S. military forces from such engagement.
Cohn further highlights that the president of Veterans For Peace, Gerry Condon is quoted saying, "Sending troops to the US border with Mexico is as immoral and illegal as sending them to invade and occupy foreign lands." "Donald Trump is carrying out a racist war against asylum seekers who are fleeing extreme violence, which in turn is caused by decades of US support for repressive regimes in Central America." Under the "Uniform Code of Military Justice (UCMJ)" the law requires all military personnel to obey lawful orders unless it is contrary to the United States' Constitution. By the prerogative powers of the constitution, the military is expected to disobey this order of enforcing civilian law on the border but instead, they comply and heed to the order, and this is evidence that the military themselves defied the constitutional per se.
According to Cohn on "Truthout" the U.S. Executive director of the National Lawyers Guild's Military Law Task Force, Mr. Kathleen Gilberd himself states that "The deployment of U.S. troops to the Southern border is an illegitimate political ploy and a serious misuse of the military. This action casts shame on a government that treats refugees seeking asylum as enemies." The U.S. Constitution is clear under "Posse Comitatus Act" whereby any part of the United States military troops legally forbidden from willfully executing Immigration and civilian Law. The military forces are conducting surveillance, border patrol and assisting in the enforcement of the immigration laws.
The President of the United States only has the power to order the use of the military within the United States in circumstances when there is an invasion or rebellion within the states. However, there is no evidence of resistance, or attack, or emergency triggered by the migrant caravan to justify this sudden posting of the troops.
The only exception to "The Posse Comitatus Act's" falls in cases expressly authorized by the Constitution or Act of Congress," but the Trump's decision itself authorized by the Constitution or Act of Congress, and on my view, this action is illegal whatsoever.
Legality of Placing the Troops on the Southern Border.
A special report by The United Patriots of Americans highlights that "The Posse Comitatus Act" does not prohibit U.S military troops on the borders. In the recent past, their cases reported where smugglers purchased U.S properties on the border in aiding their operations. In this case, these smugglers are objecting to U.S troops, and it's legal for the U.S military troops to stay at these borders to guard the federal lands since a large portion of the Land along the Mexican border is federal property.
It's is legal to deploy soldiers in occasional emergencies or natural disasters where soldiers help in managing such occurrences as they do near in their army bases - however, soldiers not to provide federal workforce pool.
Active-duty Troops on Border Patrol
The U.S. government has since deployed over 5,000 active-duty forces that are "hardening" various points of entry along U.S.-Mexico border as well as confronting the caravans of over 6,000 migrants from Central America making their way toward the border. There are over 2,000 National Guard forces along the border. These forces are reported unarmed, but in contrast, there is a possibility to arm these active-duty troops if their specialty, such as military police, required it.
The military at the border prohibited by the "Posse Comitatus Act" from engaging with the migrants or conducting law enforcement activities. Under exceptions to the law, those forces are allowed to support border patrol in administrative, surveillance or air-support roles. However, these forces are reported to be specifically "hardening" points of entry and are expected to comply with the Posse Comitatus Act.
The U.S President's Authority over The Military in Civil Matters
According to the Legal Information Institute, (n.d). The Article II Section 2 of the U.S. Constitution states that "The President shall be Commander in Chief of the Army and Navy of the United States, and the Militia of the several States when called into the actual Service of the United States."
The Administrations of Kennedy, Johnson, and Nixon, the former U.S Presidents, often committed the U.S. troops without the approval of the Congress. The Congress passed the "War Powers Resolution" in 1973 that halted the ability of the Congress in participating in war-making decisions. The aim of the Resolution requires the President to communicate to the Congress on the commitment of troops within 48 hours. If Congress does not grant any further extension on the involvement of the troops, the resolution expects the President to callback the troops within 60 days. Often, the Presidents have considered this "War Powers Resolution" to be unconstitutional, and so they have tended to ignore it exercising their power on military deployment.
Neither the Congress, any of the civilians, has challenged this unwillingness of the President to consider this resolution. In addition to this, the Supreme Court has never at any given time up the issue for consideration. Despite the existence of the War Powers Act, Congress is still largely deferential toward the President as far as military authorization is concerned. For instance, Bob Dole, the former Republican Senate Majority Leader said that President Clinton had "the authority and the power under the Constitution to do what he feels regardless of what Congress does." This statement was regarding deployment of the US troops into Bosnia in 1995.
President Trump on deploying the military troops to the southern border must have relied on the precedent action of the former Presidents.
The Role of U.S. Congress
The Legislative Branch of the U.S Constitution highlights that all the Legislative Powers are vested in a Congress of the United States which comprises the Senate and the House of Representatives. As stated in the Article 1 of the United States Constitution, signed in a convention of 1787 and ratified 1788, 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.'
According to SparkNotes (n.d), primarily, the Congress function to pass rules obeyed by the American people. Most of the bills originate with the executive branch of the government, and the proposals considered by Congress for approval since it's the Congress which is mandated by the constitution to create laws. The Congressmen elected by their constituents to represents them in the Senate and House of Representatives on every issue on the views of their constituents' concerning those matters under question, and in upholding the constitution.
The Congress also raise, support and maintain Navy and Armies, and a by enacting Rules for the Government and Regulation of the land and naval Forces. On this regard, the Congress constitute Tribunal laws inferior to the Supreme Court as well declaring War and make Rules concerning Captures on Land and Water, They, on the other hand, provide ensure that the Militia execute the Laws of the Union, suppress Insurrections and repel Invasions. As well, they also provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
Lastly, the Congress makes all Laws which shall be necessary and proper for carrying into Execution the preceding Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.
Article I Legislative Branch. (n.d). Retrieve...
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