Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent Impairment of Government Functions ( 1971 )

Authority to Use Troops to Prevent Interference With
Federal Employees by Mayday Demonstrations and
Consequent Impairment of Government Functions
The President has inherent constitutional authority to use federal troops to ensure that Mayday
Movement demonstrations do not prevent federal employees from getting to their posts and carrying
out their assigned government functions.
This use of troops is not prohibited by the Posse Comitatus Act.
April 29, 1971
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF THE ARMY
In light of the announced purpose of the “Mayday Movement” to halt the func-
tioning of the federal government by preventing federal employees from reaching
their agencies, the question has arisen as to whether there is authority to use
federal troops to insure access by federal employees to their agencies. The
question involves the relationship between the inherent authority of the President
to use troops to protect federal functions and the Posse Comitatus Act, 18 U.S.C.
§ 1385, which prohibits the use of troops for law enforcement purposes “except in
cases and under circumstances expressly authorized by the Constitution or Act of
Congress.”
It is the opinion of this Office that the Posse Comitatus Act does not prevent the
use of troops to protect the functioning of the government by assuring the availa-
bility of federal employees to carry out their assigned duties and that troops may
therefore be utilized to prevent traffic obstructions designed to prevent the access
of employees to their agencies.
In a series of memoranda, this Office has taken the position that the Posse
Comitatus Act applies to the use of troops to perform essentially law enforcement
duties and does not impair the President’s inherent authority to use troops for the
protection of federal property and federal functions. 1
1
See Memorandum for the General Counsel, Department of the Army, from the Office of Legal
Counsel, Re: Use of Federal Troops to Protect Government Property and Functions at the Pentagon
Against Anti-War Demonstrators (Oct. 4, 1967); Memorandum for Robert E. Jordan, III, General
Counsel, Department of the Army, from William H. Rehnquist, Assistant Attorney General, Office of
Legal Counsel, Re: Statutory Authority to Use Federal Troops to Assist in the Protection of the
President (Nov. 12, 1969); Memorandum for the General Counsel, Department of the Army, from the
Office of Legal Counsel, Re: Authority to Use Troops to Execute the Laws of the United States
(Mar. 27, 1970); Memorandum for Robert E. Jordan III, General Counsel, Department of the Army,
from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Authority to Use
Troops to Protect Federal Functions, Including the Safeguarding of Foreign Embassies in the United
States (May 11, 1970).
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Supplemental Opinions of the Office of Legal Counsel in Volume 1
These conclusions are based on the history of the Posse Comitatus Act, which
was originally enacted in 1878 for the purpose of preventing United States
Marshals, on their own initiative, from calling upon troops to assist them in
performing their duties. See 7 Cong. Rec. 3718, 3727, 3845–49, 4240–47 (1878).
That Act was designed to prevent use of troops in direct law enforcement under
command of minor civilian officials and does not reach essentially protective
duties. The conclusions are likewise supported by the historic and judicial recog-
nition of the President’s inherent powers to use troops to protect federal property
and functions as a necessary adjunct of his constitutional duties under Article II,
Section 3 of the Constitution. Edward S. Corwin, The President: Office and Po-
wers (1787–1957) 130–39 (4th ed. 1957).
The Supreme Court has recognized this authority. Although In re Neagle, 135
U.S. 1 (1890), involved the use of a marshal to protect a federal officer, the Court
indicated that troops might have been used when necessary. Citing the example of
obstruction to the mails, it noted that troops could be used to prevent such ob-
struction to a vital federal function pursuant to the inherent authority of the Presi-
dent. Id. at 65. When the mails were obstructed during a railway strike, President
Cleveland ordered out the troops for the purpose of protecting federal property and
“removing obstructions to the United States mails.”2 The Court upheld this action:
The strong arm of the national government may be put forth to brush
away all obstructions to the freedom of interstate commerce or the
transportation of the mails. If the emergency arises, the army of the
Nation, and all its militia, are at the service of the Nation to compel
obedience to its laws.
In re Debs, 158 U.S. 564, 582 (1895).
The intended obstruction of the Mayday Movement, as publicly announced,
extends beyond a single federal function such as the carriage of the mails, although
the mails could certainly be affected. The objective is to obstruct all federal
functioning in the nation’s capital. It is the President’s constitutional duty to
protect this functioning and prevent its obstruction, and he has the inherent autho-
rity to use troops, if necessary, to carry out this duty.
While this authority rests on inherent power, rather than specific statutes, it
should be noted that if serious violence occurs beyond the control of police, the
2
Proclamation No. 366 (July 8, 1894), reprinted in 13 A Compilation of the Messages and Papers
of the Presidents 5931 (James D. Richardson ed., 1909). While President Cleveland issued a
proclamation in this instance, it should be noted that no formal proclamation is necessary to utilize
troops in a protective, as distinguished from law enforcement, capacity. The requirement of a pro-
clamation stems from the express language of 10 U.S.C. § 334, which specifies that the use of the
military under chapter 15 of that title shall be accompanied by a presidential proclamation. Since the
proposed use of the military to protect the federal functions is based on the President’s constitutional
authority, rather than on that chapter, no proclamation is necessary here.
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Authority to Use Troops to Prevent Interference With Federal Employees
President could also, upon proper request, invoke his authority to use troops
pursuant to 10 U.S.C. §§ 331–334. Likewise, if a federal court order should be
defied, the President on his own initiative could formally call out troops pursuant
to 10 U.S.C. § 333. It is our view, however, that where federal functions are ob-
structed, invocation of these statutory provisions is not essential to the use of
troops in a protective capacity.
WILLIAM H. REHNQUIST
Assistant Attorney General
Office of Legal Counsel
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