The Insurrection Act says that the President may use the Armed Forces for A, B, and C purposes. It would remain an open question whether he could use them for D, E, and F purposes.
The Posse Comitatus Act shuts the door on that open question. No, he may only use the Armed Forces for what has been expressly authorized.
Who’s going to stop him?
The GD answer is different from the GQ answer, which is: the courts, and the military command itself. The courts would say, “Don’t do that,” and the officer corps, now knowing the orders to be illegal, would disobey them.
The GQ answer for this and all other hypos like “what if the President refuses to obey the Supreme Court” is the same: We have a constitutional crisis that hopefully will resolve peacefully but it may not.
I think the courts would be very hesitant to get into a president’s commander in chief powers. It’s arguable that posse comitatus is unconstitutional as the president as CIC decides how to employ the armed forces, not Congress or courts.
You could see how court involvement would easily get away from it. Suppose on D-Day a soldier believed that the attack was foolhardy and applied for a court injunction ordering Roosevelt to stop the attack as it was a senseless violation of his Constitutional right to life and liberty. Should a court even hear that? Note, I’m not asking if the soldier should win, but should the court not summarily dismiss it?
Certainly that’s true… But if the Governor of Calisota said, “No, do not deploy here,” and the CinC did anyway, then the courts would be risking making themselves irrelevant if they didn’t engage. The principle of checks and balances would be at risk if they simply ducked and hid.
Also, popular opinion would be relevant. If there were massive protests and condemnation from thirty other governors, that would increase the likelihood of the courts putting in an oar.
That’s true, but it doesn’t contradict what I said, does it?
That ship has sailed. It’s clear that the President can order National Guard troops to take actions that specifically contradict the express orders of the local Governor, see the Little Rock Nine.
I am not making any value judgments here, but factually the US President has defied Governors using National Guard troops in the past. The problem is not as simple as Governors overruling the President.
Then I misunderstood your post. I took it to mean that you didn’t understand why we would have both laws when one seemingly allows all of the exceptions that it was meant to prevent.
No, that was not what I meant, and thanks for pointing out the ambiguity. I agree with you, the situation is like this: The Posse Comitatus Act prohibits certain actions, subject to exceptions provided by law. The Insurrection Act provides such an exception. As a consequence, the action is permitted under the circumstances allowed for by the Insurrection Act, but prohibited (as per the Posse Comitatus Act) where those circumstances are not present. There is no contradiction between the two acts (which is why the lex posterior rule according to which the Posse Comitatus Act would take priority as the later one, doesn’t apply).
I don’t think anyone could challenge an order as “foolhardy”. They would need to show it was illegal - i.e. forbidden by an act of congress, for example. It’s hard to imagine how one could argue a course of action is “too dangerous” when the entire process of warfare is to put troops in danger. Suicidal would be a high bar to prove,