It's Not A Violation Of Posse Comitatus If We Are Preparing For War With Mexico, I Guess

Technically, making war on our Southern neighbors is firmly within Trump's executive authority, if that's what we're doing.

This is the second time I’ve had to write about the Posse Comitatus Act this year. Trump is now ordering the same potential violation of the Act he only previously talked about: he’s moving troops to the Southern border to protect us against… desperate brown people.

Posse Comitatus is supposed to prevent the U.S. military from engaging in police actions on U.S. soil. There are lots of good reasons for this, but mainly it’s military-takeover repellent. When the police arrest you, there is process. When the Marines arrest you, you need a prisoner exchange to get you out.

While the theory behind Posse Comitatus is sound, there are ways for the military to get around it. Even without President MAGA-bomber, the military was probably engaged in all sorts of things we might normally think of as “police actions” under the guise of “anti-terrorism.” Posse Comitatus allows for the military to provide logistical support to law enforcement, and to the extent they’re doing more than that, it’s unclear if a mere lawsuit could stop them.

It’s this support detail that those comfortable with an authoritarian junta taking over immigration enforcement will point to first in order to justify Trump’s actions. From the AP:

The additional troops are to provide what one official described as logistical support to the Border Patrol. This would include a variety of things such as vehicles, tents and equipment, and perhaps medical support. It was not immediately clear how many, if any, of the extra troops would be armed. Because they would not be performing law enforcement duties they would not be in violation of the Posse Comitatus Act, which prohibits the federal government from using the armed forces in a domestic police role.

As I’ve explained previously, it’s simply unrealistic to think that a thousand or so troops will be deployed to the border and not engage in police action.

Say a person crosses the border. Is the military attache going to get Border Patrol on the phone? Or are they going to detain the person right there? The former is okay, I guess. The latter is probably a violation of Posse Comitatus, if we’re being technical about the thing.

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But the broader and more accurate way of defending the action is that, well, the President of the United States can make war if he wants to. I think it would be horrible to start a military engagement with Mexico over the issue of some migrants crossing the border who are fleeing military and economic hardship. I think treating people seeking asylum as military threats is the worst possible read.

If you want to defend this crap, you don’t really have to get cute with Posse Comitatus. You just have to admit that we are a hostile nation that is engaging in troop build-up to threaten our neighbors.

We are a dick country now. And dick countries engage in saber-rattling to threaten and intimidate friendly neighbors into adopting policies beneficial to the dick country. We want Mexico to do something, and we’re not willing to negotiate or bargain with them fairly in order to get them to do it. So we’re going to threaten them with troops. Trust me, you could go back 50,000 years and still find some dick clan threatening a peaceful clan by lining up all their brutes on one side of the river.

Posse Comitatus cannot stop the military leader from being a dick. In our system, only elections can.

Mattis expected to send hundreds of troops to border [Associated Press]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.