Marvel Civil War IV: The Draft and Posse Comitatus

Continuing our series on Marvel’s Civil War event, we come to the issue of whether or not the SHRA amounts to a kind of conscription. We briefly discussed the draft and the SHRA in the comments to an earlier Civil War post, and conscription was discussed in a Mailbag a while back. We concluded there that drafting particular people, even on a named-individual basis, may be within congressional authority under the Constitution. But turning to the issue of the SHRA, we run into problems. Specifically, because the SHRA and related Initiative are pretty clearly intended to promote domestic security, and operate almost entirely within US borders, the Posse Comitatus Act comes into play.

The Act was passed in 1878 in the aftermath of Reconstruction, which followed the actual American Civil War. The thrust of the Act is that the United States armed forces—Army, Navy, Air Force, and Marines (the Coast Guard is excepted by case law)—are significantly limited in their ability to conduct operations on US soil. There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.

Perhaps the most famous such event was when President Eisenhower ordered the 101st Airborne Division of the US Army to provide an armed escort for the Little Rock Nine, in one of the most dramatic incidents in the fight for public school integration during the late 1950s. Eisenhower also federalized the Arkansas National Guard, because then-governor Faubus was using it to attempt to block the integration of the schools. But it was really only the intervention of the governor that provoked this kind of armed federal response. Congress and the President have significant constitutional authority to use the National Guard and even the regular army to put down “insurrection,” and a state governor’s open, armed defiance of federal law surely counts. This power derives from the Insurrection Act, which gives the President the authority to use the regular army to put down insurrection and lawlessness.  The Act is in turn derived from Congress’s constitutional power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The Insurrection Act was also invoked to quell the 1992 Los Angeles riots.

Apart from those incidents and the Civil War, the number of times the regular army has been deployed on US soil is pretty low. This is because the Posse Comitatus Act prohibits the domestic use of US soldiers without the express authorization of Congress. The Insurrection Act is one such authorization, but any circumstance which falls outside that mandate will require additional legislation, either dealing with a specific situation or creating a broader grant for a particular kind of activity.

In fact, in the real world, shortly after the Marvel Civil War event began, Congress passed an amendment to the Insurrection Act that would arguably authorize the use of the federal armed forces to deal with the threat of supervillain violence.  The 2006 amendments to the Act give the President the power to 

employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a … terrorist attack or incident, or other condition …, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and such violence results in a condition that … so hinders the execution of the laws of a State or possession … and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In the wake of the Stamford Disaster it could be argued that a “terrorist incident or other condition” had occurred, the regular state authorities were incapable of maintaining public order, and the level of violence rose to the level of depriving people of their rights.  This broader authority under the amended Insurrection Act may authorize the Initiative’s activities, but it would not authorize the registration and conscription parts of the SHRA.  Thus, the SHRA would still have to be passed, and so it would make sense to include a more specific authorization for the Initiative rather than relying on the Insurrection Act.  Note, though, that the 2006 amendments were later repealed.  They were in force during most of the Civil War event, however.

It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. The Guard has a close relationship with the regular armed forces, operates on a federal level under the Department of Defense, and is composed largely of inactive or reserve federal soldiers, but remains distinct from the regular army in that it answers ultimately to state governors, not the President, unless the President exercises his constitutional authority to take control of the Guard. Most notably, one cannot be drafted into the National Guard. Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.

The issue with the SHRA is that if the Initiative is an activity of the US military, it runs into the Posse Comitatus Act, and if it is not, it is far from clear that Congress could use the draft to staff it. Again, while Congress has broad authority to conscript men into the military, that authority is limited to the military, as it is an implied power of Congress’s explicit ability to raise armies. If conscripts are not to be used for the army, the conscription power would not seem to apply.

How can one get around this seeming catch-22? Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act. Remember, the Act does not say that the Army cannot be used on US soil, it says that the Army cannot be used on US soil without congressional authorization, which Congress is naturally free to grant. However, one wonders just how popular such a move would be given that the immediate justification for the SHRA was the Stamford Disaster, in which a bunch of superheroes acting irresponsibly resulted in the destruction of an elementary school. Subsequent stories indicate that the Initiative remains far from popular, and the Initiative training camp seems to be subject to organized protest just about around the clock. One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition. The SHRA itself is frequently said to be popular, but the Initiative somewhat less so.

Some of the uncertainty here stems from the general confusion surrounding the SHRA itself. But the Posse Comitatus and related draft issues seem to be something that the writers could have gotten right if they’d wanted to. Congress is entirely free to authorize military action on US soil, and given that superhero teams would probably be limited to fighting problems which require their particular talents, one can see how certain members of Congress could think that would be a good idea. Whether or not there would be enough support for that provision to pass it is an open question, but it would have made this aspect of the Civil War even that much more consistent.