U.S. Constitution Day Extra Credit Discussion, Essay Example

In recent years natural disasters like the Gulf Oil spill and Hurricane Katrina have raised questions on the Presidential power to instruct military forces into disaster areas, essentially for the protection of life, property and to maintain law and order.  The Stafford Act authorizes the use of the Military for such purposes but they are prohibited  them from performing law enforcement functions under the Posse Comitatus Act. The President however does have additional powers under the Insurrection Act where he can command Federal troops to aid in the Execution of the law.

The Posse Comitatus Act is something of an unusual legal instrument.  ” The Constitution does not explicitly bar the use of military forces in civilian situations or in matters of law enforcement, but the United States has traditionally refrained from employing troops to enforce the law except in cases of necessity. The Posse Comitatus Act (PCA), 18 U.S.C. § 1385, punishes those who, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, wilfully use any part of the Army or the Air Force as aposse comitatus or otherwise to execute the laws….”  (Jennifer K Elsea.)

The Department of Defense (DOD) asserts another exception that does not purely reside on statutory authorities.  It has limited coverage but refers to actions taken considered in the inherent right of the US Government i.e. restoring government functions, dealing with civil disturbances like rioting and looting,  dealing with other law enforcement authorities in orders to establish order.  The invocation of Emergency powers broadens this. Under most circumstances the invocation of such powers may be made by the issue of an Executive Order but Military Commanders have the right to take independent action in circumstances where items occur like :  Earthquake, Tornado Damage, Fire, Flood, Avalanche, or other such circumstances where there might be endangerment of life. The Stafford Act mainly distinguishes between the use of the National Guard and Federal Troops.  In a State Emergency these distinctions become diluted and regulated by the State Governor.  It is debatable whether the Acts skirt the US Constitution. There are checks and balances in place to eliminate potential loss of civil liberties and human rights. Congress has delegated a number of these rights to the President  but retains complete authority over Federal Lands, Military installations and other similar areas.

Works Cited

Jennifer K Elsea., Chuck Mason. The use of Federal Troops for Disaster Assistance : Legal Issues. 28 11 2008. 24 6 2010 <http://www.fas.org/sgp/crs/natsec/RS22266.pdf>.