There’s a lot of concern around the “Cabinet Order” that reportedly authorizes active duty troops to use lethal force and conduct arrests at the border – and rightly so. 1/9
It’s quite possible the order violates the Posse Comitatus Act (PCA). But it’s also possible that it doesn’t – and that’s frankly even scarier. 2/9
Contrary to what many people seem to think, the PCA does not establish a blanket prohibition on federal troops performing law enforcement functions. It doesn’t always apply, and it’s subject to a lot of exceptions. 3/9
For instance, courts have held that the PCA doesn’t apply if the troops are acting with a primarily “military purpose,” which isn’t terribly well defined. 4/9
Also, the Insurrection Act is considered a statutory exception to PCA, and presidents can invoke it in a pretty wide range of circumstances (not just insurrections). 5/9
Longstanding DoD regulations also cite two (unwritten) "constitutional exceptions” to PCA, which include protection of “Federal governmental functions.” 6/9
And DoD is allowed to provide physical security for civilian law enforcement, which can (in extreme circumstances) involve the use of deadly force. 7/9
If any of these exceptions were used to justify federal troops shooting at migrants in the caravan or arresting them, I think it would be a massive abuse of the relevant laws and regulations. But… 8/9
The problem here is at least partly a legal framework that makes it too easy for the president to deploy troops inside the U.S. and on the border. 9/9
