Commandeering and constitutional change.

• Author: Campbell, Wesley J.
• Position: II. The Constitution C. The Posse Comitatus through IV. Commandeering and Constitutional Change, with footnotes, p. 1140-1181

3. The Posse Comitatus

   Though mostly silent about which officers would enforce federal law, the Constitution explicitly gave Congress the power to "provide for calling forth the Militia to execute the Laws of the Union." (141) Anti-Federalists generally preferred state administration of federal laws, and many worried that the power to call on state militias implied a corresponding lack of power to use civilian modes of law enforcement. Federal Farmer, (142) for instance, excoriated the Framers for choosing military rather than civilian means for enforcing federal laws:

   I see no provision made for calling out the posse commitatus [sic] for executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them-and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance and thereby introduce an entire military execution of the laws. (143) In an era without public police forces, calling upon the posse comitatus was a universally accepted practice whereby a sheriff temporarily conscripted local citizens to assist him in enforcing the law. (144) Disobedience to state and local authorities was quite common, and therefore sheriffs often called upon the posse. (145) Federal Farmer did not explicitly endorse federal commandeering of citizens and their local sheriffs; rather, he criticized the Constitution for omitting such a power. Why should Congress be able to call upon militias when local posses would have been sufficient? Surely, Federal Farmer implied, this incongruity exposed invidious Federalist designs to usurp control over state militias.

   Hamilton replied in Federalist No. 29. Federal Farmer's argument, he stated, exposed "a striking incoherence in the objections which have appeared. ... The same persons who tell us in one breath that the powers of the federal government will be despotic and unlimited, inform us in the next that it has not authority sufficient even to call out the POSSE COMITATUS." (146) Hamilton then put to rest any uncertainty regarding such a federal power:

   It would be ... absurd to doubt that a right to pass all laws necessary and proper to execute its declared powers would include that of requiring the assistance of the citizens to the officers who may be entrusted with the execution of those laws. ... What reason could there be to infer that force was intended to be the sole instrument of authority merely because there is a power to make use of it when necessary? (147) The context of Hamilton's exchange with Federal Farmer suggests that Hamilton was implicitly supporting federal commandeering of state executive officers. Federal Farmer's critique was that Congress could call on state militias but not on state civil law enforcement-namely, local sheriffs assisted by citizens of the county. In Federalist No. 29, Hamilton clarified that the Necessary and Proper Clause provides for implied federal power over civil law enforcement analogous to the enumerated federal power over state militias. In other words, Congress can require local posses to enforce federal laws just as it can require state militias to enforce federal laws.

   Two counterarguments are worth considering. First, perhaps Hamilton was asserting congressional power to commandeer citizens but not state law-enforcement officers. Indeed, he specifically mentioned "requiring the assistance of the citizens." Hamilton, however, plainly considered it within Congress's power to commandeer the posse comitatus, which was always led by public officials. (148) If anything, his reference to "the officers who may be entrusted with the execution of those laws" only clarifies his argument in Federalist No. 27 that the Supremacy Clause and the Oath Clause would render state and local officers auxiliary to the enforcement of federal laws.

   One might also object that the officers entrusted with the execution of the laws could have been federal marshals instead of local sheriffs. (149) Therefore, perhaps Hamilton was not presuming federal power over state officials. While plausible, this argument runs contrary to the context of Hamilton's debate with Federal Farmer. Their discussion centered on federal power over one state-based institution (the militia) and whether comparable power would exist over another state-based institution (the local posse), (150) Thus, when Federal Farmer mentioned sheriffs enforcing federal law, his readers would most likely have understood him as referring to local sheriffs, who were the only sheriffs then in existence, (151) The discussion in Federalist No. 29 is not dispositive, but it supports the view that Hamilton envisioned Congress invoking the Necessary and Proper Clause to commandeer state officers.

   Debates in the Virginia ratification convention paralleled the exchange between Federal Farmer and Publius. Several days into the convention, Anti-Federalist Green Clay voiced his concern that the power of Congress to call upon the militia to execute federal law needlessly risked "the establishment of a military Government." (152) Instead, the Framers should have provided "that the sheriff might raise the posse comitatus to execute the laws." (153) Clay then asked "why [militia enforcement] was preferred to the old established custom of executing the laws ?" (154)

   Madison was the first to respond. Civil law enforcement would not always be sufficient, he stated, "as the sheriff must be necessarily restricted to the posse of his own county." (155) Cases of necessity, he argued, may therefore compel Congress to use state militias to enforce federal law. But Madison clarified that he "did not by any means admit, that the old mode was superceded by the introduction of the new one." (156) That is, existing state civilian institutions would remain the primary mode of law enforcement. Madison's reference to county boundaries seems to clarify that the Virginia delegates were discussing the role of local sheriffs and their posses, not federal marshals.

   Patrick Henry-the leading Anti-Federalist at the Virginia ratifying convention-was unsatisfied. In his reply to Madison, Henry seemingly took for granted federal authority over state officials by virtue of the Oath Clause, but he rejected a comparable federal authority over "the civil power" of the people themselves. He began by criticizing the Constitution for not limiting federal uses of the militia to cases of necessity. (157) Henry, however, further asserted that "[t]he civil power is not to be employed at all. ... I read [the Constitution] attentively, and could see nothing to warrant a belief, that the civil power can be called for. I would be glad to see the power that authorises Congress to do so." (158) Instead, he warned, "[t]he sheriff will be aided by military force. The most wanton excesses may be committed under colour of this. For every man in office, in the States, is to take an oath to support it in all its operations." (159) With these statements, Henry casually acknowledged that the debate was really about federal power to commandeer individual citizens. Neither Madison nor Henry expressed any doubt that the federal government could compel state officers to enforce federal law.

   Echoing Madison's earlier rebuttal, other Federalist delegates uniformly rejected Henry's denial of federal power to call upon local posses. George Nicholas stated that "[t]he civil officer is to execute the laws on all occasions; and if he be resisted, this auxil[i]ary power is given to Congress, of calling forth the militia to execute them, when it shall be found absolutely necessary." (160) Governor Edmund Randolph agreed:

   Ought not common sense to be the rule of interpreting this Constitution? Is there an exclusion of the civil power? Does it provide that the laws are to be inforced by military coercion in all cases? No, Sir. All that we are to infer, is, that when the civil power is not sufficient, the militia must be drawn out. (161) At the end of this onslaught, Green Clay responded that "he might be mistaken with respect to the exclusion of the civil power in executing the laws." (162)

   Building on Hamilton's argument in Federalist No. 29, the Virginia Federalists vehemently rejected any notion that Congress would lack authority to employ the usual mode of enforcing the law. Their views strongly suggest a federal power to commandeer local sheriffs. Yet perhaps the most significant feature of these debates is how they reflect the Anti-Federalists' broader priorities. Federal Farmer, Green Clay, and Patrick Henry, among others, criticized the Constitution not because it provided for the commandeering of state militias but because it omitted a comparable power over more benign methods of state law enforcement. (163) In other words, as with the debate over federal tax collection, disputes over federal power to call upon local posses reflected different federalism concerns than those most prevalent today.

   3. EARLY CONGRESSIONAL PRACTICE

   Given Federalists' repeated promises to enforce federal laws using state officers, one might have expected the new government to do just that. Yet these assurances went unfulfilled. Instead, Federalists quickly reverted to the position they had taken during the impost controversy, overwhelmingly supporting the creation of federal offices. To some extent this move was predictable. Hamilton, for instance, made his sentiments well known during the impost debates. But the Federalist agenda also benefitted from Anti-Federalist missteps-particularly their ham-fisted efforts to stave off dual office holding (164)-1eaving Federalists able to achieve their policy objectives with little political cost.

   Still, Anti-Federalists did not roll over without a fight. Anti-Federalist congressmen urged their colleagues to use state officers rather than create a federal bureaucracy. And...