Daily, there is a federal judge somewhere ruling against the Trump administration. This is because (as I have said before) when the Democrats state that Donald Trump is a Hitleresque authoritarian and promote this view incessantly to those who continue to watch the MSM for their information, including many federal court judges, this is the inevitable result. The federal district court judges are behaving poorly because, contrary to the conventional wisdom, judges are not special, unbiased arbitrators of the law, but just normal people who can become biased just like anyone else. These judges don’t like Donald Trump because they are Democrat appointees, along with a few Republican ones who have gone “Washington” – i.e., they watch the MSM, have liberal friends, and attend elite liberal events – and they are now convinced that Donald Trump is acting outside his powers as president, and thus, are working to obstruct or defeat him.
Recently, one of these judges decided to rule on something I know quite a bit about – the Posse Comitatus Act (PCA) – so I decided to look the decision up and see if the judge actually knew what he was talking about.
And now, having done so, I can report to you that Judge Breyer “knows nothing” about the PCA.
I knew this fact immediately upon reading the very first line of the decision: “Congress spoke clearly in 1878 when it passed the PCA, prohibiting the use of the U.S. military to execute domestic law.” Nothing in this statement is correct. Congress did not speak clearly; a coalition of actors, both Republicans and Democrats, with very different motivations, pushed the language of this law, which many of them thought meant different things. And the PCA DOES NOT prohibit the use of the U.S. military to execute domestic law.
Let’s discuss, shall we?
In 1874, the Democrats won back the U.S. House for the first time since the advent of the Civil War. The Southern Democrats had an overriding concern – to end Reconstruction in the South, which would result in the re-enfranchisement of all white Southern Democrats and the disenfranchisement of Southern blacks, carpetbaggers, and scalawags. In 1876, there was the famous disputed election, where the Democrats held the House, but Republican Rutherford B. Hayes was recognized as the winner of the presidency by Southern Democrats in return for allowing the few remaining Southern states still controlled by the Northern forces to revert to Southern Democrat control.
In 1878, the Democrats used the PCA as a wedge issue to exploit divisions in the Republican Party. The Democrats knew that the U.S. military, which post-Civil War was heavily Republican, was increasingly distressed by the use of military forces in “posses” in Southern States.
Now, everyone reading this knows what a “posse” is. When the bad guy in the cowboy movie does something bad, the townsfolk get together and organize a group of people, called a posse, to capture him. This included all men above a certain age, which also meant that the posse could include soldiers from the army. This was a big problem for the military hierarchy, as it meant that a local public official could grab soldiers from the army, take them away from their own leadership, and use them for that official’s own, non-military purposes.
Often, in the Southern states, the public officials were using the soldiers to protect the voting rights of black citizens.
So, contrary to Judge Breyer’s belief, the House Democrats who introduced the PCA grounded their arguments more on an appeal to Republicans who were sympathetic to the concerns of the military that the chain of command was not being honored, rather than an appeal to any high-minded principles about the military being used to enforce the law. The Senate debate, where the Republicans held the majority, rarely, if ever, mentioned the latter. In fact, the GOP members focused exclusively on the military’s concerns. In the end, the final vote for the appropriations language that included the PCA came overwhelmingly from Republicans in both chambers.
Which, using normal logic, means that Congress passed the PCA largely to prevent posses from including members of the military.
Then there is Judge Breyer’s statement that the PCA “prohibits(s) the use of the U.S. military to execute domestic law.” This is not correct, either.
As always, when interpreting a law, it is important to actually start with the language of said law. 18 U.S. Code § 1385, the PCA, states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space 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.
This means that the PCA has five elements. To violate the PCA, someone must: (1) willfully (2) use the Army, the Navy, the Marine Corps, the Air Force, or the Space Force (3) as a posse comitatus or otherwise (4) to execute the laws (5) in a way that is not expressly authorized by the Constitution or an act of Congress.
Notice that two of those elements, numbers two and four, are Breyer’s definition of using the military “to execute the laws.” But only part; the courts are also supposed to check into the other elements as well, to see if the PCA was violated.
In fact, the CW definition regarding the PCA, which Breyer regurgitates, was expressly rejected by Congress in 1878. Twice, members pushed to drop the other elements from the PCA besides those two, and both times, the respective congressional chamber did not codify it.
This should mean that the PCA cannot be defined solely as using the military to execute the law.
Judge Breyer never discusses any of those other PCA elements. He never determines that Donald Trump acted "willfully" and thus violated the first element. He never mentions the third element “as a posse comitatus or otherwise,” which is not clearly defined. The Posse Comitatus part of the element addresses the military’s concern by barring its use in posses; the “or otherwise” is the unclear part. Breyer does delve into the fifth element, although his discussion is hampered by his misunderstanding of the entire debate itself.
Breyer also spends a lot of time parsing the military regulations regarding what is executing the law. These are regulations and are not grounded in law.
In the end, Judge Breyer’s decision is determined by a judicial doctrine (judge-made law), which conflicts with the actual law passed by Congress and agreed to by the president. Because it is a doctrine, it can be overruled by Congress and the president at any time.
It is also a poor decision and should be overruled by a higher court.
Editor's Note: Radical leftist judges are doing everything they can to hamstring President Trump's agenda to make America great again.
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