“Whoever, except in cases and under 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.” (18 U.S. Code I.67 §1385)
“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states [emphasis mine], when called into the actual service of the United States.” (U.S. Constitution, Article II.2)
On Sept. 24, 1957, President Eisenhower “federalized the Arkansas National Guard and authorized calling the Guard and regular federal forces to remove obstructions to justice in Little Rock school integration.” He did so citing the threat to law and order from potentially violent mobs gathered to protest and obstruct the admittance of black children to a previously all-white public school. At the time some Southern politicians called on Gov. Faubus to resist Eisenhower’s move. As in some quarters today, such calls relied on a provision of federal law that purports to penalize anyone who uses federal troops to enforce domestic laws.
Obviously, President Eisenhower had sense enough to understand that the law, as quote above, excluded from the prohibition any “circumstances authorized by the Constitution or Act of Congress.” Fast forward to the current threat of unarmed invasion, sponsored by the Mexican government, which presently looms against the United States along our southern border. But for the aid and comfort the Mexican government verifiably extended to the so-called “Refugee Caravan” that was moving toward the U.S. from Central America in recent weeks, such a threat would be a hypothetical supposition.
But the threat of unarmed invasion is not hypothetical. It is an ongoing fact. The prospect of Mexican government involvement in that invasion is not mere speculation. Indeed, given the customarily tough enforcement of strict laws against illegal entry into Mexico, non-enforcement of those laws clearly seems to verify that government’s complicity in the looming threat, or else its incapacity to prevent it. Has the government of Mexico in fact become incompetent to deal with organized threats against the United States from its territory?
If so, the common-sense reasoning of America’s founding generation appears to apply. Writing in the context of discussing just causes of war between nations, John Jay (later the first chief justice of the U.S. Supreme Court) referred to the incapacity of the several states to police territory along our nation’s borders with foreign powers. He wrote of “… hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.” Jay also recognized that such dereliction along our borders with other nations would “be most likely to excite war with these nations.”
If the Mexican government pursues policies of action or inaction that threaten the United States in this way, are we obliged to lay back and do nothing to prevent the damage that results to our territory and its inhabitants? Better that we should provide the policing capacity Mexico lacks, in order to forestall such evils before they compel both our nations into a war each professes to abhor. Such preventive action becomes an imperative of our national security. Even on the assumption that the Posse Comitatus Act (quoted above) applies to the commander in chief (a doubtful supposition that President Eisenhower rightly rejected), what’s at stake along our borders is not the enforcement of domestic laws, but laws that govern the commerce of persons that naturally occurs along our borders between foreign subjects and people subject to U.S. jurisdiction.
As I recently noted elsewhere, such commerce becomes a matter of national defense and security when it involves terrorism or the direct dissolution or subversion of our sovereignty as a people. Such matters fall within the exclusive purview of the U.S. government. They involve the violation of our territory and sovereign jurisdiction. Given its aggressive intent, we must reasonably prepare, for it may escalate to physical violence at any moment. Article IV.4 of the U.S. Constitution applies. The president is obliged to taken action in order to guarantee the states, respectively, against invasion. Obvious, he may call on our regular military forces, the National Guard and Reserve or the militia at large, if need be, to forestall or deal with the situation.
President Trump is being poorly advised if he accepts the notion that Jerry Brown or any other governor has the constitutional prerogative to overrule his authority as commander in chief when he calls the militia (organized, like the National Guard, or unorganized) into actual service under the federal authority of the United States. Once he has done so, any governor or state government purporting to modify or countermand the president’s command attacks the authority of the U.S. Constitution. If they persist in that attack, that governor and all who, by action or inaction, join in his attack, are engaged in rebellion against the United States, and should be dealt with accordingly.
If President Trump, or any other president, permits the government of any state thus to disregard the authority of the Constitution, that dereliction of the duty to “take care that the laws be faithfully executed,” as long as it persists, constitutes an existential threat to the Constitution and government of the United States. If that is not an impeachable offense, the term is meaningless. Such dereliction inevitably risks that, before long, the Constitution itself will be meaningless, as well. In this respect, the time for tough tweets is over. It’s time for actions that are tougher still.