ALEXANDER HAIG, ET AL., PETITIONERS V. GLADYS BISSONETTE, ET AL. No. 86-987 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit Brief for the Petitioners TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision and statute involved Questions presented Statement Summary of argument Argument: A seizure is not unreasonable under the Fourth Amendment simply because it is made in violation of the Posse Comitatus Act A. As a general matter, the violation of a statute, without more, does not make a seizure unreasonable B. In any event, a purported violation of the Posse Comitatus Act, without more, does not give rise to a Fourth Amendment claim under Bivens 1. The text and structure of the Posse Comitatus Act demonstrate that the Act was not designed to furnish a standard of reasonableness under the Fourth Amendment 2. The history and purpose of the Posse Comitatus Act confirm that the Act was not intended to provide a benchmark of reasonableness under the Fourth Amendment 3. There is no basis for the court of appeals' belief that the Fourth Amendment incorporates an implicit restriction on the use of the military Conclusion OPINIONS BELOW The opinion of the court of appeals en banc (Pet. App. 1a-14a) is reported at 800 F.2d 812. The opinion of the panel (Pet. App. 15a-33a) is reported at 776 F.2d 1384. The opinion of the district court dismissing the complaint (Pet. App. 34a-38a) is unreported. An earlier opinion of the district court (Pet. App. 39a-58a) is reported at 539 F. Supp. 552. JURISDICTION The judgment of the court of appeals en banc (Pet. App. 59a) was entered on September 16, 1986. The petition for a writ of certiorari was filed on December 15, 1986, and was granted on February 23, 1987. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION AND STATUTE INVOLVED The Fourth Amendment to the Constitution provides in pertinent part: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * * . The Posse Commitatus Act, 18 U.S.C. 1385, provides: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. QUESTIONS PRESENTED 1. Whether the violation of a federal statute, without more, may render unreasonable an otherwise reasonable seizure and thereby give rise to a Fourth Amendment claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 2. Whether a purported violation of the Posse Comitatus Act, 18 U.S.C. 1385, without more, gives rise to a Fourth Amendment claim under Bivens. STATEMENT 1. On February 27, 1973, an armed group of Indians occupied the village of Wounded Knee, South Dakota, on the Pine Ridge Reservation. Shortly after the occupation began, members of the Federal Bureau of Investigation, the United States Marshals Service, and the Bureau of Indian Affairs Police sealed off the village by establishing roadblocks at all major entry and exit roads. The standoff between the Indians and law enforcement authorities ended about ten weeks later with the surrender of the Indians occupying the village. Pet. App. 16a. 2. In February 1975, respondents, most of whom were residents of the Pine Ridge Reservation at the time of the occupation, brought this action in the District Court for the District of Columbia. Respondents alleged that petitioners, who were at that time military personnel or federal officials, had conspired to seize and assault them and to destroy their property, in violation of several constitutional and statutory provisions. Respondents' principal claim was that petitioners' use of military personnel to assist the law enforcement efforts at Wounded Knee violated the Posse Comitatus Act, 18 U.S.C. 1385, as well as a purported constitutional right -- arising from that statute -- to be free from the use of the military in the enforcement of civil laws. Pet. App. 17a, 40a-41a; J.A. 23-24, 34-51. In 1981, after the case was transferred to the District of South Dakota, petitioners moved to dismiss the complaint. They contended that respondents had failed to state a claim, that there was a lack of personal jurisdiction, and that the allegations in the complaint were vague and conclusory. On May 24, 1982, the district court granted the motion to dismiss in part, permitting respondents leave to file an amended complaint (Pet. App. 39a-58a). The court held, first, that all but one of the named defendants had been improperly served with process (id. at 41a-50a). Next, the court determined that respondents had failed to state a claim under 18 U.S.C. 2, 241, and 371, and under the Posse Comitatus Act, 18 U.S.C. 1385, on which respondents had "place(d) their primary reliance" (Pet. App. 51a-53a). The court could not locate "the slightest indication of any legislative intent to create a private cause of action" under these statutes (id. at 51a-52a). /1/ Finally, the court rejected respondents' "central" claim (id. at 53a) to a constitutional "right to be free of the use of the military in the enforcement of civil laws" (id. at 53a-57a). The court held that "the mere enforcement of the law by officials who happen to be members of the military and involving no infringement of a citizen's recognized constitutional rights, does not present a constitutional violation giving rise to a private cause of action" (id. at 56a n.7). Because the respondents had alleged other violations of their rights under the First, Fourth and Fifth Amendments -- such as violations of their freedom of movement, right to travel, and right of assembly -- the court did not dismiss the complaint in full (id. at 56a). Instead, in light of the vagueness of the complaint (id. at 57a-58a), the court granted respondents leave to file an amended complaint within 40 days. On July 20, 1982, respondents filed their second amended complaint. See J.A. 1-20. In it, respondents again alleged -- as their only claim for relief -- that petitioners had violated the Constitution by using the military in contravention of the Posse Comitatus Act (Pet. App. 35a; J.A. 3-12). On October 18, 1984, the district court again dismissed the complaint (Pet. App. 34a-38a), holding that it could not "accept the proposition that, because Congress has chosen to put statutory limits on the actions of government officials, any act that goes beyond these limits is thereby an automatic violation of the Constitution" (id. at 37a). The court observed that "(j)ust as a state may impose greater restrictions on police activity than that required under the Constitution, so may Congress also impose greater restrictions on the ability of the federal government to enforce laws than are imposed on those officials by the Constitution itself" (ibid.). Since "the Constitution itself does not prohibit the use of the military in civil law enforcement," and since Congress -- while limiting the role of the military in civilian life under 18 U.S.C. 1385 -- did not create "a private cause of action for violations of that statute," then "even assuming defendants were all guilty of Section 1385 violations, this fact provides no basis for (respondents') claim" (Pet. App. 37a-38a). 3. The court of appeals reversed (Pet. App. 15a-33a). The court framed the issue as "whether a search or seizure, otherwise permissible, can be rendered unreasonable under the Fourth Amendment because military personnel or equipment were used to accomplish those actions" (id. at 19a). In resolving this question, the court held, "the limits established by Congress on the use of the military for civilian law enforcement provide a reliable guidepost by which to evaluate the reasonableness for Fourth Amendment purposes of the seizures and searches" (id. at 24a). In particular, the court stated, "(respondents') Fourth Amendment case * * * must stand or fall on the proposition that military activity in connection with the occupation of Wounded Knee violated the Posse Comitatus Act" (id. at 26a). That Act, the court surmised (id. at 25a-26a), is "not just any act of Congress" but is instead "the embodiment of a long tradition of suspicion and hostility towards the use of military force for domestic purposes." Relying on its previous decision in United States v. Casper, 541 F.2d 1275 (1976) (per curiam), cert. denied, 430 U.S. 970 (1977), the court stated (Pet. App. 26a) that the Act was not violated by the alleged use of military personnel, planes and cameras for aerial surveillance; by reliance on military advice in dealing with the disorder; and by the furnishing of military equipment and supplies. /2/ The court held, however, that respondents' allegations went beyond these limits, and included the purported involvement of military personnel in "'maintain(ing) roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee'" (id. at 29a). To that extent, the court concluded, respondents' allegations stated a violation of the Posse Comitatus Act and thus gave rise to a Fourth Amendment claim sufficient "to survive a motion to dismiss" (ibid.). /3/ 4. The court of appeals thereafter granted petitioners' application for rehearing en banc (see 788 F.2d 494 (1986)), but after supplemental briefing and argument the court divided 5-4 in upholding the panel's decision (Pet. App. 1a-14a). The majority acknowledged (id. at 5a) "that the Constitution is conceptually and practically distinct from any Act of Congress, and (that) it is not the law that any search and seizure that violates a federal statute also violates the Fourth Amendment." The majority nevertheless viewed the Posse Comitatus Act as "a special case" for the reasons stated in "(t)he panel opinion" (ibid.). Observing that "Acts of Congress * * * must be at least prima facie evidence of what society as a whole regards as reasonable" (ibid.), the majority "adhere(d) to the decision() made by the panel, * * * upholding as legally sufficient the Fourth Amendment theory, to the extent that the complaint alleges a violation of the Posse Comitatus Act" (id. at 10a). /4/ Judge Fagg, joined by three other judges, dissented (Pet. App. 11a-14a). In his view, the Posse Comitatus Act "should not be the sole threshold consideration in determining whether an unreasonable seizure in violation of the Fourth Amendment has occurred" (id. at 11a). As he put it (id. at 11a-12a): To accept the court's view renders unnecessary any examination of the circumstances or exigencies giving rise to the actions taken or the scope, nature, or purpose for which the actions were taken. Under the court's analysis, regardless of the lives saved, the property protected, and the otherwise reasonable and responsible actions of military officers seeking to assist civil law enforcement officials, a violation of the Posse Comitatus Act results in all other considerations becoming constitutionally irrelevant and per se constitutes a violation of the Fourth Amendment. Judge Fagg agreed that "the Posse Comitatus Act rightfully seeks to restrict military involvement in civilian affairs" (id. at 12a); but, he added, "(t)he Constitution itself does not prohibit or restrict such involvement" and, in this case, "(petitioners') actions were reasonable" (ibid.). The dissent also noted that "by focusing wholly on the Posse Comitatus Act (the majority) has created a private cause of action not expressly or by implication authorized by Congress" (id. at 13a). /5/ SUMMARY OF ARGUMENT The court of appeals held that an otherwise reasonable seizure becomes unreasonable simply because it is executed in purported violation of the Posse Comitatus Act. Although recognizing in general that a Fourth Amendment violation does not necessarily result whenever a search or seizure violates a statute, the court found the Posse Comitatus Act to be a special case, embodying "a long tradition of suspicion and hostility towards the use of military force for domestic purposes" (Pet. App. 25a-26a). In thus looking to the Act as "a reliable guidepost" (id. at 24a) of reasonableness under the Fourth Amendment, the court of appeals erred both as a matter of constitutional and statutory law. A. We believe that there is no statute whose violation, without more, constitutes a per se violation of the Fourth Amendment. To the contrary, this Court's decisions make clear that an array of circumstances must be considered in assessing the reasonableness of a search or seizure -- including the nature and purpose of the action and the exigencies giving rise to it. Any while some statutes may affect the determination of reasonableness, a statute, like the Posse Comitatus Act, that simply allocates law enforcement responsibility among executive agencies has no bearing at all on the determination of reasonableness. B. Assuming, arguendo, that a bare statutory violation may in some cases make a seizure unreasonable under the Fourth Amendment, the result in this case is unsupportable because the Posse Comitatus Act does not establish standards for reasonable searches and seizures. Indeed, the text of the Act makes a most quixotic source of Fourth Amendment values; and the legislative history demonstrates that the 1878 Congress that passed the Act did not intend thereby to create any restriction with constitutional implications concerning the deployment of the military in law enforcement. While certain provisions in the Constitution, not applicable here, deal quite explicitly with the management and deployment of the armed forces, the Fourth Amendment, relied on by respondents, does not. And given the historical record, there is no reason to suppose that the Framers intended the Fourth Amendment to incorporate a set of additional constraints on the use of military force, not articulated in the Amendment itself. ARGUMENT A SEIZURE IS NOT UNREASONABLE UNDER THE FOURTH AMENDMENT SIMPLY BECAUSE IT IS MADE IN VIOLATION OF THE POSSE COMITATUS ACT A. As A General Matter, The Violation Of A Statute, Without More, Does Not Make A Seizure Unreasonable 1. This Court has consistently made clear that "(t)o determine the constitutionality of a seizure '(w)e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). The Court has stressed that a "'balancing of competing interests'" is "'the key principle of the Fourth Amendment'" (Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981) (citation omitted)), and that "(c)ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted" (Bell v. Wolfish, 441 U.S. 520, 559 (1979)). And in making these balancing judgments, courts cannot resort to "any fixed formula" or "litmus-paper test" (United States v. Rabinowitz, 339 U.S. 56, 63 (1950); see also Go-Bart Co. v. United States, 282 U.S. 344, 357 (1931)). 2. The court of appeals applied just such a "fixed formula" in ruling that if the involvement of the military at Wounded Knee could be said to have violated the Posse Comitatus Act, then the purported seizure of respondents was necessarily unreasonable under the Fourth Amendment. More specifically, the court of appeals ignored this Court's decisions holding that the content of the Fourth Amendment cannot be determined simply by rote incorporation of statutory provisions. The Court has repeatedly rejected the contention that a Fourth Amendment claim may be predicated, without more, upon some alleged statutory violation. In Cooper v. California, 386 U.S. 58 (1967), for example, the lower court had suppressed the evidence seized by police officers from a defendant's car after they had impounded the car following the defendant's arrest, reasoning that the officers had no authority under the state forfeiture statute to conduct the search. This Court rejected that conclusion, in language equally applicable to the holding of the court of appeals in this case (386 U.S. at 61): (T)he question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." /6/ The Court in Oliver v. United States, 466 U.S. 170 (1984), likewise refused to accept a claim to a "reasonable expectation of privacy" under the Fourth Amendment based solely on the putative violation of statutory law. The Court in that case held that trespass laws could not create a Fourth Amendment privacy interest in so-called "open fields." Trespass laws, the Court held, are not designed to protect the same interests as the Fourth Amendment. As the Court put it (466 U.S. at 183 n.15): (T)he common law of trespass furthers a range of interests that have nothing to do with privacy and that would not be served by applying the strictures of trespass law to public officers. Criminal laws against trespass are prophylactic: they protect against intruders who poach, steal livestock and crops, or vandalize property. And the civil action of trespass serves the important function of authorizing an owner to defeat claims of prescription by asserting his own title. Similarly, in Dow Chemical Co. v. United States, No. 84-1259 (May 19, 1986), rejecting a Fourth Amendment claim asserted by the plaintiff, the Court held that trade secret law, as well as state tort law governing unfair competition, "does not define the limits of the Fourth Amendment" (slip op. 4). See also New Jersey v. T.L.O., 469 U.S. 325, 343 n.10 (1985); Oregon v. Hass, 420 U.S. 714, 719 (1975); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 393-394 & n.6 (1971); Silverman v. United States, 365 U.S. 505, 511 (1961). /7/ Just as the Court has refused to uphold Fourth Amendment claims solely derived from statutory violations, so too has it rejected arguments that mere compliance with governing statutes obviates a more probing Fourth Amendment inquiry. This Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), illustrates how a statute may fall short of the constitutional mark and thus furnish an insufficient standard for Fourth Amendment "reasonableness." In that case the Court held that warrantless inspections of business premises under Section 8(a) of the Occupational Safety and Health Act of 1970 violated the Fourth Amendment. The Court rejected the contention that the statute should be upheld because it "represents a congressional construction of the Fourth Amendment" (436 U.S. at 311). Instead, the Court considered the historical purposes of the Warrant Clause, together with the "specific enforcement needs and privacy guarantees" of the statute (id. at 311-324). The simple fact that a statute authorized the search did not ensure that the search was constitutional. More recently, in Tennessee v. Garner, 471 U.S. 1 (1985), the Court refused to uphold under the Fourth Amendment the use of deadly force to effect the arrest of a fleeing felon. There again, a statute authorized the seizing officer to use deadly force in making the arrest. The Court nevertheless "balanc(ed) the extent of the intrusion against the need for it" (471 U.S. at 7), holding that "(w)here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so" (id. at 11). See Michigan v. DeFillippo. 443 U.S. 31, 39 (1979); Torres v. Puerto Rico, 442 U.S. 465, 471-472 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 877-878, 883-884 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) ("no Act of Congress can authorize a violation of the Constitution"); Berger v. New York, 388 U.S. 41, 44 (1967). Cf. Illinois v. Krull, No. 85-608 (Mar. 9, 1987), slip op. 14-15 n.12. The approach of the court of appeals, in finding a statutory provision to be a suitable proxy for the Fourth Amendment, is thus fundamentally in conflict with this Court's jurisprudence. Statutes are enacted for many reasons, and it cannot be assumed that they are intended faithfully to mirror the commandment of a particular constitutional amendment. See 31-39, infra. And even when the legislature actually intends to provide guidance in the interpretation of the Constitution -- absent a formal amendment through the Article V process -- its views can only be one factor in the analysis under the Fourth Amendment. See 15-17, infra. If the law were otherwise, the content of constitutional provisions -- and thus the extent of constitutional protections -- could vary widely from year to year, depending solely on the legislation that Congress decided to enact. Such vagaries do little to ensure that under the Fourth Amendment "(w)herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures" (Katz v. United States, 389 U.S. 347, 359 (1967)). /8/ 3. While a statute may not -- contrary to the mistaken assumption of the court of appeals in this case -- supplant a thoroughgoing Fourth Amendment analysis, some statutes clearly can and do have implications for the balancing of competing interests. For example, statutes may affect a person's expectation of privacy and thus bear on whether or not he has any Fourth Amendment rights at all. See Katz v. United States, 389 U.S. at 360 (Harlan, J., concurring). In this connection, the Court has recognized an exception from the Warrant Clause for "pervasively regulated business(es)" (United States v. Biswell, 406 U.S. 311, 316 (1972)), and for "closely regulated" industries "long subject to close supervision and inspection" (Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77 (1970)), on the grounds that such ongoing statutory regulation diminishes "justifiable expectations of privacy" (Biswell, 406 U.S. at 316). See also Donovan v. Dewey, 452 U.S. 594, 603 (1981). The Court has also held that "pervasive and continuing governmental regulation and controls" may reduce the expectation of privacy of an automobile operator (South Dakota v. Opperman, 428 U.S. 364, 368 (1976); see also New York v. Class, No. 84-1181 (Feb. 25, 1986), slip op. 6-7; Cady v. Dombrowski, 413 U.S. 433, 441-442 (1973)), and may likewise diminish a government employee's expectation of privacy in the workplace (see O'Connor v. Ortega, No. 85-530 (Mar. 31, 1987), slip op. 6). /9/ The Court has also relied on statutes as evidence of what society regards as a reasonable intrusion on individual privacy. In Donovan v. Dewey, 452 U.S. 594 (1981), for example, the Court rejected a Fourth Amendment challenge to the warrantless search provisions of the Federal Mine Safety and Health Act of 1977. The Court concluded (452 U.S. at 602) that Congress had found "a substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines" and had "reasonably determined that warrantless searches are necessary to further a regulatory scheme" (id. at 600). Similarly, in United States v. Watson, 423 U.S. 411 (1976), the Court relied, in part, on a federal statute when it upheld the authority of postal inspectors to make warrantless arrests of felony suspects. See also Tennessee v. Garner, 471 U.S. at 15-16 ("look(ing) to prevailing rules in individual jurisdictions" in assessing the reasonableness of police procedures). In each of these cases, however, the Court examined the competing interests of the government and the individual, and treated the statutes in question as evidence that informed, but was not dispositive of, the requisite Fourth Amendment balancing inquiry. See, e.g., Garner, 471 U.S. at 9-11; Dewey, 452 U.S. at 602-606; Watson, 423 U.S. at 416-424. 4. But not every statute that limits the government's freedom to act in a particular fashion may be said to affect a person's expectation of privacy or furnish evidence of what society believes to be a reasonable intrusion. Many such statutes concern matters of internal governmental organization and housekeeping, and can only by the most strained reasoning be said to bear in any way on an individual's expectation of privacy. In particular, when the government does nothing more than allocate law enforcement responsibility among different agencies, the resulting statute, like the Posse Comitatus Act, is simply not relevant to a court's analysis under the Fourth Amendment. As the Court put it in Michigan v. Tyler, 436 U.S. 499, 506 (1978), "there is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman * * * ." By the same token, no greater Fourth Amendment constraints should arise by virtue of the uniform of the seizing official. The strictures of the Fourth Amendment are "imposed upon 'governmental action' -- that is, 'upon the activities of sovereign authority'" (New Jersey v. T.L.O., 469 U.S. at 335 (quoting Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). How the sovereign elects to distribute its law enforcement responsibilities among its various agencies has no bearing on the Fourth Amendment analysis. As we show in more detail below, pp. 20-39, infra, the Posse Comitatus Act does nothing more than confine the deployment of the Army and Air Force in law enforcement to cases in which they have been expressly authorized to participate. Such an allocation of enforcement authority cannot plausibly be said to affect an expectation of privacy "that society is prepared to recognize as 'reasonable'" (Smith v. Maryland, 442 U.S. 735, 740 (1979), quoting Katz v. United States, 389 U.S. at 353, 361; see also Hudson v. Palmer, 468 U.S. 517, 525 (1984)). Nor does such an allocation decision reflect a legislative judgment that the execution of the law by some other official is unreasonable under the Fourth Amendment. The government allocates enforcement responsibilities for any number of reasons, including manpower needs, experience, and logistics. /10/ Deviations from those allocations are not "unreasonable" under the Fourth Amendment; they may, in fact, be nothing more than inefficient. /11/ B. In Any Event, A Purported Violation Of The Posse Comitatus Act, Without More, Does Not Give Rise To A Fourth Amendment Claim Under Bivens Even if the violation of certain statutes could, in some cases, render a seizure unreasonable under the Fourth Amendment, the Posse Comitatus Act is not such a statute. /12/ The language and structure of the Act and its interaction with related provisions make the Act a most unlikely, and highly erratic, source of constitutional values. Moreover, the legislative history does not support the court of appeals' belief that the Act reflects a "tradition of suspicion and hostility towards the use of military force for domestic purposes" (Pet. App. 25a-26a). Finally, there is no support for the court's unarticulated premise that the Fourth Amendment incorporates unique restrictions on the use of the military in domestic law enforcement. 1. The Text And Structure Of The Posse Comitatus Act Demonstrate That The Act Was Not Designed To Furnish A Standard Of Reasonableness Under The Fourth Amendment a. The Posse Comitatus Act forbids persons from "willfully us(ing) any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws" except "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." 18 U.S.C. 1385. /13/ By its terms, the Act does not address the reasonableness of searches and seizures under the Fourth Amendment. The Act simply restricts the use of certain branches of the armed services to "execute the laws." Indeed, it does so in a hit-and-miss fashion, explicitly applying only to the Army and the Air Force. It does not apply to the Coast Guard at all (see United States v. Chaparro-Almeida, 679 F.2d 423, 425 (5th Cir. 1982), cert. denied, 459 U.S. 1156 (1983); Posse Comitatus Act: Hearing on H.R. 3519 Before The Subcomm. on Crime of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 48-49 (1981) (hereinafter Posse Comitatus Hearings)), /14/ and covers the Navy and Marines only "as a matter of (Department of Defense) policy, with such exceptions as may be provided * * * on a case-by-case basis" (32 C.F.R. 213.10(c); see United States v. Walden, 490 F.2d at 374-375)). Moreover, under the complex array of interlocking statutes and regulations that govern, it appears that the Act does not apply to the National Guard at all. /15/ It is hard to fathom how such a statute could possibly supply, as the court of appeals supposed, "a reliable guidepost" of reasonableness within the meaning of the Fourth Amendment. Whether a seizure is reasonable should not depend on whether it is attributed to a soldier or to a Marine. Cf. High, The Marine Corps and Crowd Control: Training and Experience in Bayonets in the Streets 113, 132 (R. Higham ed. 1969) (noting that the Marine Corps' "crowd control" and "police work" procedures "are taken from appropriate Army manuals"). Nor can the reasonableness of a search turn on whether the regular Army or a member of the federalized National Guard executes it. b. Beyond this, the Act does not apply at all to "cases and * * * circumstances" in which the use of the Army or Air Force has been "expressly authorized by * * * Act of Congress"; and that exception confirms that the statute was not designed to provide a reliable benchmark of Fourth Amendment values. /16/ Congress can entirely alter the scope of the Posse Comitatus Act -- by either expanding or contracting the number of "express" authorizations for military participation in domestic law enforcement. And only historical accident can explain many of the disparate authorizations that in fact have been made. See generally 32 C.F.R. 213.10(a)(2)(iv) (listing various statutes under which use of the military to execute laws is expressly authorized). For example, there are a number of statutes authorizing the military to protect certain lands. Thus, Congress has authorized the military to remove trespassers from Indian reservations (25 U.S.C. 180), and to remove unlawful enclosures from public lands (43 U.S.C. 1065). It has also authorized the use of military force to protect the rights of discoverers of guano islands (48 U.S.C. 1418), and has likewise extended the "anachronis(tic)" (Note, supra, 83 Yale L.J. at 138 n.60) authority to employ military force to protect isolated parcels of federal property (see 16 U.S.C. 593 (authorizing the use of military force to protect federal timber lands in Florida); 16 U.S.C. 23 and 78 (authorizing the use of the Army to remove trespassers from certain specified national parks)). /17/ In addition to such specific statutory authorizations, in 10 U.S.C. 331-334 Congress has provided a more "sweeping authority to quell domestic insurrection through employment of Federal troops." Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 714 n.63 (1976). Under these provisions, military force may be used "(w)henever" a State requests aid "to suppress (an) insurrection" (10 U.S.C. 331); "(w)henever the President considers * * * it impracticable to enforce the laws of the United States * * * by the ordinary course of judicial proceedings" (10 U.S.C. 332); and whenever the President "considers (it) necessary to suppress * * * domestic violence" affecting a "right, privilege, immunity, or protection named in the Constitution and secured by law" or, simply, violence that "opposes or obstructs the execution of the laws of the United States" (10 U.S.C. 333). These provisions, which are derived from statutes enacted at virtually the same time as the Fourth Amendment, /18/ essentially authorize the use of the Army whenever the President considers it necessary. Except for the requirement in Section 331 that a State must formally request federal assistance, the only restriction on the President's authority under Sections 331-333 is that "(w)henever the President considers it necessary to use the militia or the armed forces (thereunder), he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time" (10 U.S.C. 334). Because the determination of necessity "belongs exclusively to the (P)resident, and * * * his decision is conclusive upon all other persons" (Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827); see also Luther v. Borden, 48 U.S. (7 How.) 1, 43-45 (1849)), issuance of a proclamation is ultimately all that distinguishes authorized action from a possibly unauthorized use of military force. c. Congress revisited the Posse Comitatus Act most recently when, as part of the Department of Defense Authorization Act of 1982, Pub. L. No. 97-86, Tit. IX, Section 905, 95 Stat. 1114-1116, it enacted legislation intended to "clarify authority for cooperation between military and civilian law enforcement officials." H.R. Conf. Rep. 97-311, 97th Cong., 1st Sess. 119 (1981). Codified at 10 U.S.C. 371-378, this legislation is the most recent evidence of Congress's unfettered power, and obvious willingness, to alter the reach of the Posse Comitatus Act. Moreover, in enacting this legislation Congress explicitly considered and rejected the view -- embraced by the court of appeals in this case -- that the Posse Comitatus Act embodies a constitutional limitation on the use of the military to enforce the law. See generally Note, supra, 54 Geo. Wash. L. Rev. at 416-425. /19/ The 1982 legislation has four principal sections. Sections 371 and 372 authorize the Secretary of Defense to make available to federal, state, and local law enforcement agencies information, equipment, and facilities belonging to the military. Section 373 authorizes the Secretary to assign members of the military to train law enforcement officials in the operation and maintenance of equipment furnished under Section 372. Finally, Section 374 authorizes the Secretary, upon two conditions, to assign military personnel to operate equipment that has been furnished under Section 372. First, the equipment must be used "with respect to" violations of certain federal criminal laws (notably, narcotics violations); and second, the equipment must be used only "for monitoring and communicating the movement of air and sea traffic." Beyond this, Section 374 provides that in "emergency circumstances" military personnel may operate the equipment outside the United States "as a base of operations" to enforce the specified criminal statutes, provided that the equipment is not used "to interdict or to interrupt the passage of vessels or aircraft." Before its enactment, opponents of the proposed legislation made the very argument adopted by the court of appeals in this case -- that the bill was at odds with the Posse Comitatus Act and transgressed constitutional limitations on the "role for the military in civilian law enforcement" (H.R. Rep. 97-71, 97th Cong., 1st Sess. Pt. 2, at 18-19 (1981) (Rep. Conyers); see also Posse Comitatus Hearings at 34-47 (testimony and statement of Christopher H. Pyle)). Representative Edwards, for example, asserted that "rather important * * * constitutional right(s)" were at stake and opposed the bill because, in his view, it would "profoundly affect the traditional separation of the military from routine civilian law enforcement" (127 Cong. Rec. 15667 (1981)). Representative Bethune argued against "rushing pellmell to do away with a hundred-year-old rule of law" -- the Posse Comitatus Act -- which he believed "might even be in the nature of a constitutional right approximating that of separation of church and state" (id. at 15665). /20/ And Representative Conyers contended that it would be unconstitutional to restrict the coverage of the Posse Comitatus Act because "to change this 100-year-old law that has admitted constitutional sacredness" would be "tampering with the Constitution" (id. at 15682). /21/ See also id. at 15679 (Rep. Jacobs); id. at 15682 (Rep. Chisholm); id. at 15687 (Rep. Dellums); id. at 15688 (Rep. Gonzalez). But Congress ultimately rejected the claim that the Posse Comitatus Act has constitutional stature and thus should not be amended. Choosing deliberately to make a "departure from the current strictures" of the Act (H.R. Rep. 97-71, supra, Pt. 2, at 12), Congress concluded that the Posse Comitatus Act was a "sufficiently ambiguous" precedent (id. at 3), whose "age * * * and * * * rather vague legislative history" required clarification (S. Rep. 97-58, 97th Cong., 1st Sess. 148 (1981)). /22/ Supporters of the 1982 legislation never doubted that a change in the Posse Comitatus Act would be lawful. As Senator Nunn put it, the "number of other * * * exceptions to the doctrine of posse comitatus" demonstrates that "(w)here the need for military assistance has presented itself with full force, Congress has in the past seen to it that limited assistance has been forthcoming" (id. at 2003). Accord, id. at 2006 (Sen. Sasser). In short, while Congress acknowledged a "long tradition of separating the military from day to day involvement in the execution and operation of the civilian laws" (H.R. Rep. 97-71, supra, Pt. 2, at 11), the consensus of its members was that "Congress passed (the Posse Comitatus Act)" and could "certainly amend it today to deal with the (drug trafficking) problem" (127 Cong. Rec. 15680 (1981) (Rep. Evans)). As Congressman Sawyer stated (id. at 15686), "there is in fact no constitutional problem at all. This is strictly * * * a problem of changing an old law." Congress passed the 1982 legislation -- and thus restricted the reach of the Posse Comitatus Act -- because it determined that there were good policy reasons to do so. /23/ It considered, but rejected, the contention that the Posse Comitatus Act embodies constitutional norms and thus cannot be altered. /24/ 2. The History And Purpose Of The Posse Comitatus Act Confirm That The Act Was Not Intended To Provide A Benchmark Of Reasonableness Under The Fourth Amendment The court of appeals' assertion that the Posse Comitatus Act is "the embodiment of a long tradition of suspicion and hostility towards the use of military force for domestic purposes" (Pet. App. 25a-26a), is not borne out by the history of the Act. The Posse Comitatus Act was not passed to remove the military from law enforcement. Indeed, members of Congress repeatedly acknowledged that the military plays a legitimate role in law enforcement. Congress insisted, however, that the legislature should determine what role the military was to serve, and thus provided that the military could only be deployed in law enforcement when "expressly authorized" by the Constitution or by an act of Congress. a. The Posse Comitatus Act originated as a rider to an Army appropriations bill, offered during the Forty-fifth Congress on May 20, 1878. /25/ In its initial guise, the rider provided that "it shall not be lawful to use any part of the land or naval forces of the United States to execute the laws either as a posse comitatus or otherwise, except in such cases as may be expressly authorized by act of Congress." 7 Cong. Rec. 3586 (1878). Supporters defended the proposed amendment on various grounds. In his introductory remarks, Representative Kimmel, the sponsor of the bill, denounced the use of standing armies and stated a preference for state militia. See id. at 3579-3586. /26/ Other supporters suggested different rationales. Some voiced general opposition to the use of federal soldiers to enforce Reconstruction (see, e.g., 7 Cong. Rec. 3536 (1878) (Rep. Hewitt); id. at 3677-3679 (Rep. Southard)), and, in particular, to using the Army to uphold "carpetbag" governments in South Carolina and Louisiana (see id. at 3677-3679 (Rep. Southard); id. at 3850 (Rep. Ellis)). Some objected to a recent suggestion of the Secretary of War that the Army was in effect a "national police" force (see id. at 3717-3718 (Rep. Ellis)). Still other members debated the propriety of using federal troops to control strike-related violence. Compare, e.g., id. at 3538 (Rep. Hewitt); id. at 3634 (Rep. Butler); id. at 3677 (Rep. Durham); id. at 3679 (Rep. Wright); id. at 3682-3683 (Rep. Cobb); id. at 3735 (Rep. Hardenbergh) with id. at 3618 (Rep. Caldwell); id. at 3636-3637 (Rep. Garfield). Kimmel's formulation of the Posse Comitatus amendment, however, did not survive debate on the floor. The House adopted instead a narrower appropriations rider, restricted solely to the deployment of the Army. /27/ Proposed by Representative Knott, this rider provided (7 Cong. Rec. 3845 (1878)): From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus or otherwise under the pretext or for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by act of Congress. /28/ In contrast to the arguments advanced in support of the Kimmel rider, Knott and his supporters did not view this amendment as an effort to curb the use of federal military force in law enforcement. Indeed, Knott conceded that "the military arm of the Government may be invoked for enforcing the civil laws" (7 Cong. Rec. 3846 (1878)). He observed, moreover, that there were "particular cases in which Congress has provided that the Army may be used, which this bill does not militate against, such as the case of the neutrality laws, the enforcement of the collection of customs duties and of the civil-rights bill, and one or two other instances" (id. at 3849). The Knott rider was designed instead to assert congressional control over the deployment of the Army to enforce the law. As one of its chief proponents put it, the rider was intended "to enable the legislative department of the Government alone to say in what mode and manner the Army raised, equipped, provisioned, and paid by the legislative department of the Government according to the provisions of law shall be used" (7 Cong. Rec. 3845 (1878) (Rep. Hooker)). See also id. at 3846-3847 (Rep. Knott); id. at 3851 (Rep. Tucker). Disclaiming any intention to make unlawful "(w)hatever it is lawful for an officer or a soldier of the Army to do as the law now exists" (ibid. (Rep. Herbert)), supporters simply denounced past instances in which the Army allegedly had been employed "under the pretext of enforcing the laws without one scintilla of authority to be found in any enactment of Congress" (id. at 3846 (Rep. Knott)). What particularly troubled supporters of the Knott rider -- and what accounts for the name of the Act today -- was an 1854 opinion of the Attorney General advising federal marshals that they were entitled to summon the assistance of the entire "posse comitatus," including "the military of all denominations" (7 Cong. Rec. 3850 (1878) (Rep. Southard)). See 6 Op. Att'y Gen. 466 (1854). "(T)his amendment," Knott declared, "is designed to put a stop to the practice, which has become fearfully common, of military officers of every grade answering the call of every marshal and deputy marshal to aid in the enforcement of the laws" (id. at 3849). "(I)t is to prevent a recurrence of this usurpation of authority * * * that this amendment is proposed," Knott stated (id. at 3847). Over objections that Knott's proposal was a "purely partisan" attempt to embarrass the President (7 Cong. Rec. 3851-3852 (1878) (Rep. Gardner)), the Knott amendment was adopted by the House in an almost strictly party-line vote. See id. at 3852, 3877; see generally Siemer & Effron, Military Participation in United States Law Enforcement Activities Overseas: The Extraterritorial Effect of the Posse Comitatus Act, 54 St. John's L. Rev. 1, 29-35 & n.140 (1979). b. In the Senate, the proposal to attach Representative Knott's amendment to the Army appropriations bill was sponsored by Senators Kernan and Bayard. 7 Cong. Rec. 4239-4240 (1878). /29/ When he introduced the rider, Senator Kernan made clear that it was not intended to prevent the deployment of the Army for law enforcement purposes but only to assert the authority of Congress over how the Army was used. As in the House debate, the focus of Kernan's concern was the Attorney General's instruction to the marshals that they were free to use the Army when they deemed that circumstances required (id. at 4240). As he put it (ibid.), under the proposed amendment "there shall be no right to use the Army as a posse comitatus by the peace officers of the State or of the General Government unless there is some statutory or constitutional provision that expressly authorizes it." Senator Beck, a supporter of the bill, acknowledged that the amendment did not "seek to change" those statutes -- including "the civil-rights bill" and "two or three other statutes of that sort" -- under which there was existing authority "to call upon the Army" (7 Cong. Rec. 4240 (1878)). Beck insisted that "the whole object of this section * * * (was) to limit the use by the marshals of the Army to cases where by law they are authorized to call for them, and not to assume that they are in any sense a posse comitatus to be called upon when there is no authority given them to call upon anything but the posse comitatus" (id. at 4241). See also id. at 4242 (Sen. Kernan). /30/ In short, Senator Bayard observed, "the naked proposition was this" (id. at 4301): (T)hat the Army of the United States was the creature of the Constitution and laws of the United States, that it should not be used except in accordance with the laws of its being, and that he who uses it otherwise than the law and the Constitution permitted should be answerable. That was all. That is what the section means. /31/ The Senate accepted the Posse Comitatus rider only after first making both of the changes initially proposed by Kernan and Bayard, see p. 36 n.29, supra as well as deleting the requirement that congressional authorization be given "expressly," see p. 34, supra. 7 Cong. Rec. 4302 (1878). In addition, the Senate amended the proposal so as to prohibit only the "willful" use of the Army without authority, and it struck altogether the provision establishing criminal penalties. Id. at 4302, 4304. c. The final version of the Posse Comitatus Act was negotiated in conference. The House ultimately agreed to accept all of the Senate's changes in language, insisting only that the criminal penalties and the word "expressly" be restored. 7 Cong. Rec. 4647-4648 (1878). Reporting this compromise back to their respective chambers, the House conferees claimed that the Act confirmed "the great principle that the Army of the United States in time of peace should be under the control of Congress and obedient to its laws" (id. at 4686 (Rep. Hewitt)), while the Senate conferees asserted that "the Executive would not be embarrassed by the prohibition of Congress" because "if the power (to use the Army) arises under either the Constitution or the laws it may be exercised" (id. at 4648 (Sen. Sargent)). d. This legislative history does not bear out the court of appeals' extravagant assertion that the Posse Comitatus Act was "the embodiment of a long tradition of suspicion and hostility towards the use of military force for domestic purposes" (Pet. App. 25a-26a). The enacting Congress appears to have intended the Act simply as an assertion of congressional control over the military. It manifestly did not intend to eliminate the military's law enforcement functions; still less did it intend to create a constitutional standard of reasonable searches and seizures. Because the court of appeals misread this historical record, it incorporated into the Fourth Amendment a statute that was never meant by its framers to serve such an elevated function. 3. There Is No Basis For The Court Of Appeals' Belief That The Fourth Amendment Incorporates An Implicit Restriction On The Use Of The Military The court of appeals' decision to read into the Fourth Amendment the supposed content of the Posse Comitatus Act is wrong not only in its misreading of that statute, but in its unarticulated premise that the Fourth Amendment imposes implicit limitations on the role of the military. For two reasons, this premise cannot be sustained. First, the Constitution contains express rules governing the role and control of the military, and there is no reason to suppose that the Fourth Amendment was designed to impose additional constraints not mentioned in, or fairly implied by, the other, more explicit provisions. Second, the routine deployment of the military to assist in law enforcement at the time that the Fourth Amendment was passed undermines any suggestion that the Amendment imposes, sub silentio, restrictions on how the military may be used. a. By its terms, the Fourth Amendment says nothing at all about the role of the military in the enforcement of civilian law. Other portions of the Constitution, by contrast, deal quite explicitly with how the military shall be organized, managed, and deployed. Article II, Section 2, Clause 1, provides that the President shall be "Commander in Chief of the Army and Navy of the United States, and of the militia * * * when called into the actual Service of the United States." Article I, Section 8, Clauses 14 and 16, provide that Congress shall "make Rules for the Government and Regulation of the land and naval Forces" as well as for "such Part of (the Militia) as may be employed in the Service of the United States." These provisions, which commit the basic questions about the governance and role of the military to the political branches, are supplemented by Article I, Section 8, Clause 12, which prohibits making appropriations "for a longer Term than two Years" and which was conceived as the "best guard" against "a military Gov(ernmen)t" (2 The Records of the Federal Convention of 1787, at 330 (M. Farrand ed. 1966) (hereinafter Farrand)). See also The Federalist No. XLI, in The Complete Madison 114 (S. Padover ed. 1953). Finally, in the only constitutional restriction on the role of the military that is "particularly valuable to individuals" (2 H. Storing, The Complete Anti-Federalist Paragraph 2.8.202, at 329 (1981)), the Third Amendment generally prohibits the quartering of soldiers in any house without the consent of the owner. The court of appeals acknowledged these constitutional limitations on the role of the military in civilian affairs (Pet. App. 21a), and it did not suggest that the purported use of the military in the present case offends any of these express provisions. Nor could such a claim have plausibly been made. Apart from the Third Amendment, which is plainly not in issue, the Constitution affirmatively leaves decisions about the deployment of the military to the political branches. Nowhere other than in the Third Amendment does the Constitution prescribe how the military may be used, and there is no reason why the Fourth Amendment should be thought silently to incorporate restrictions that were not included in the other, quite explicit portions of the Constitution. b. As this Court observed in Carroll v. United States, 267 U.S. 132, 149 (1925), "(t)he Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted * * * ." Accord, United States v. Villamonte-Marquez, 462 U.S. 579, 585-587 (1983); United States v. Ramsey, 431 U.S. 606, 616-619 & n.14 (1977). The historical setting in which the Fourth Amendment was adopted confirms that the Amendment was not designed implicitly to incorporate restrictions on the use of the military to enforce the law. It was well understood by the Framers that the military was freely available to assist in law enforcement. During the debates in the 1788 Virginia ratifying convention, Madison was asked why Article I, Section 8, Clause 15 authorizes Congress to "provide for calling forth the Militia to execute the Laws of the Union." /32/ Madison stated that "the reasons (are) obvious * * * . If resistance should be made to the execution of the laws * * * it ought to be overcome." 3 Farrand 318. Moreover, in The Federalist No. XXVIII, Hamilton observed that whether the army or the militia is used "to maintain the just authority of the laws" depends solely on how strong a force the situation requires. Defending the necessity of organizing a strong militia (The Complete Madison 47-48 (S. Padover ed. 1953)), Madison asked the Virginia convention, "How is it possible to answer objections against possibility of abuses?" It must strike every logical reasoner, that these (abuses) cannot be entirely provided against. I really thought that the objections to the militia (were) at an end. Was there ever a constitution, in which, if authority was vested, it must not have been executed by force, if resisted? Was it not in the contemplation of this state, when contemptuous proceedings were expected, to recur to something of this kind? How is it possible to have a more proper resource than this? That the laws of every country ought to be executed, cannot be denied. That force must be used if necessary, cannot be denied. Can any government be established, that will answer any purpose whatever, unless force be provided for executing its laws? Indeed, in its first session Congress immediately introduced, and later enacted, a bill recognizing the military establishment of October 3, 1787, and authorizing the President to call whatever part of the militia that he thought necessary to protect the frontier from Indian incursions. 1 Stat. 95 (cited in F. Wilson, Federal Aid in Domestic Disturbances 25 (1922)). Thereafter, on May 2, 1792, the Second Congress enacted a bill entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions" (1 Stat. 264 (quoted in F. Wilson, supra, at 25)). In 1795 Congress replaced this Act with an even broader grant of authority to the President, permitting him to use the militia to enforce the law without advice from Congress or from the Judiciary (1 Stat. 424 (cited in F. Wilson, supra, at 34, and G. Fabiano, The Analysis and Interpretation of the Use of Presidential Authority to Order United States Armed Forces into Military Action to Quell Domestic Disturbances 56 (1962)). See also p. 25 n.18, supra. Thus, in 1794, President Washington could rely on express statutory authority to send troops to suppress the Whiskey Rebellion. See F. Wilson, supra, at 26-33; B. Rich, The Presidents and Civil Disorder 2-20 (1941); G. Fabiano, supra, at 46-52. Troops were again called upon to restore domestic order in Fries's Insurrection in 1799, to arrest the Burr conspirators in 1807, and to enforce the Embargo in 1808. See F. Wilson, supra, at 34-44. Indeed, as part of the Embargo Act, Congress formally authorized the President "to employ * * * such part of the land or naval force of the United States * * * as shall be judged necessary * * * for the purpose of suppressing * * * all cases of insurrection or obstruction to the laws * * * " (Act of Mar. 3, 1807, ch. 39, 2 Stat. 443 (cited in G. Fabiano, supra, at 63-64)). On this historical record, it is hard to imagine that the Framers intended the Fourth Amendment to impose a set of unstated restrictions on the use of the military. /33/ The court of appeals in the present case thought otherwise, electing to read into the Amendment the terms and conditions that Congress provided in the Posse Comitatus Act nearly 100 years after the adoption of the Fourth Amendment. The Constitution cannot abide such freewheeling and ahistorical use of congressional enactments. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General LAWRENCE S. ROBBINS Assistant to the Solicitor General BARBARA L. HERWIG MARC JOHNSTON Attorneys MAY 1987 /1/ As to the claims under 18 U.S.C. 241 and 371, the district court cited authority rejecting assertions of a civil damage remedy. E.g., Fiorino v. Turner, 476 F. Supp. 962, 963 (D. Mass. 1979). The court said it had found no such direct authority concerning the question of a private right of action under 18 U.S.C. 2 and 1385. /2/ To the extent that respondents based their Fourth Amendment claim on these purported actions by the military, the court upheld the district court's dismissal (Pet. App. 29a-30a). The court of appeals stated (ibid.) that "this sort of activity does not violate the Posse Comitatus Act * * * (and) is therefore not 'unreasonable' for Fourth Amendment purposes." /3/ The court rejected respondents' claims under the Due Process Clause of the Fifth Amendment, finding "no clear support for the novel theory" that there can be a "due-process violation by reason of the mere fact that the confinement and other deprivations inflicted upon (respondents) derived from military action instead of civilian" (Pet. App. 30a). Still, the court noted, it was "reinforced" in its decision to uphold the dismissal of those claims "by the knowledge that all of the proof relevant under such a theory will still come in if and when the Fourth Amendment search-and-seizure theory goes to trial. In other words, (respondents) do not really need the due-process theory in order to secure relief here, the Court having already held that an unauthorized action by a military officer can be 'unreasonable' under the Fourth Amendment even though the same thing, if done by a civilian official, would not." Id. at 32a. The court also declined to reach, on the present record, petitioners' claims that they were not properly served and that the action was barred by the statute of limitations (ibid.). /4/ The court also held that on remand petitioners might be able to establish defenses of either absolute or qualified immunity (Pet. App. 3a), or demonstrate that their conduct was exempted by Congress from the reach of the Posse Comitatus Act by other legislation (id. at 3a-4a). In addition, the court refused to reconsider the panel's holding that "indirect or passive military involvement, such as aerial surveillance and the furnishing of materials and supplies," does not violate the Posse Comitatus Act and therefore states no Fourth Amendment claim (id. at 10a). /5/ Judge Fagg found it "truly ironic that military officials who responded to requests for assistance by civilian authorities and who in the face of an armed uprising acted not to subvert but to preserve and protect the Constitution and restore civilian rule now face substantial monetary liability" (Pet. App. 13a). /6/ Accord, Sibron v. New York, 392 U.S. 40, 59-62 (1968). /7/ The simple violation of an agency regulation likewise has been held not to give rise to a constitutional claim. In United States v. Caceres, 440 U.S. 741 (1979), the defendant sought to suppress certain tape-recorded conversations between an I.R.S. agent and himself that were offered at his bribery trial. Defendant contended that the agent had failed to secure authority to record the conversations, thus violating agency regulations. This Court reversed an order suppressing the evidence, holding that "none of respondent's constitutional rights has been violated" (440 U.S. at 755), and that application of the exclusionary rule in this context might well "have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures" (id. at 755-756). /8/ Measuring the content of the Fourth Amendment solely by the terms of a statute leads to the further anomaly that even where the statute creates no private right of action for a violation, the Fourth Amendment will automatically provide one. The latter anomaly is especially striking in this case, since respondents have expressly renounced the claim that there is a private right of action under the Posse Comitatus Act. See Pet. App. 17a & n.3. /9/ Cf. Illinois v. Krull, No. 85-608 (Mar. 9, 1987) (The exclusionary rule does not apply to police officers who act in reasonable reliance upon a statute authorizing warrantless administrative searches). /10/ To be sure, the government may sometimes allocate law enforcement responsibility because of a view of the "propriety or desirability, from a policy standpoint," of assigning a given role to a particular agency (Laird v. Tatum, 408 U.S. 1, 15 (1972)). The Posse Comitatus Act, for one, may arguably reflect such policy concerns. But a legislative judgment about what "policies" are most "desirable" in parcelling out the government's functions must not be confused with the constitutional judgment about what limits should be imposed on government actions. The court of appeals indulged precisely that confusion in elevating the policy judgments embodied in the Posse Comitatus Act to the stature of constitutional doctrine. /11/ The court of appeals is not alone in ignoring the fact that the Fourth Amendment is addressed to the reasonableness of searches, and not the identity of searchers. In a series of analogous cases, the Ninth Circuit has held that the use of Department of Commerce agents (United States v. Whiting, 781 F.2d 692 (1986)), or agents of the F.B.I. (United States v. Soto-Soto, 598 F.2d 545, 550 (1979)), in executing border searches makes those searches unreasonable under the Fourth Amendment. None of those cases explains why the government's decision to assign border search responsibility to Customs -- rather than to Commerce or the F.B.I. -- makes a search conducted by those other agencies necessarily unreasonable. /12/ The court of appeals' reliance on the Posse Comitatus Act is at odds with decisions of the other circuits, which have uniformly rejected analogous claims in the context of criminal prosecutions. See, e.g., United States v. Griley, No. 85-5551 (4th Cir. Mar. 26, 1987), slip op. 19-21; United States v. Hartley, 796 F.2d 112, 114-115 (5th Cir. 1986); United States v. Roberts, 779 F.2d 565, 566-568 (9th Cir. 1986), cert. denied, No. 85-7057 (Oct. 6, 1986); United States v. Hartley, 678 F.2d 961, 977-978 (11th Cir. 1982), certs. denied, 459 U.S. 1170 and 459 U.S. 1183 (1983); United States v. Wolffs, 594 F.2d 77, 84-85 (5th Cir. 1979); United States v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983 (1974). The state courts have likewise roundly rejected claims under the Act. See, e.g., People v. Hayes, 144 Ill. App. 3d 696, 98 Ill. Dec. 911, 494 N.E.2d 1238, 1240-1241 (1986); State v. Nelson, 298 N.C. 573, 584-585, 260 S.E.2d 629, 639 (1979); State v. Danko, 219 Kan. 490, 497-498, 548 P.2d 819, 825 (1976) (the Posse Comitatus Act "expresses a policy that is for the benefit of the people as a whole, rather than a policy which could be characterized as designed to protect the personal rights of individual citizens as declared in the Fourth Amendment"). Even in the one case that we know of in which evidence was ultimately suppressed under the Posse Comitatus Act, the court made clear that "the potential abuses of the Act obviously are not of the same magnitude, neither qualitatively nor quantitatively, as violations under the Fourth Amendment," and held that "(v)iolations of Section 1385 do not necessitate an automatic invocation of an exclusionary rule." Taylor v. State, 645 P.2d 522, 524 (Okla. Crim. App. 1982). See also Harker v. State, 663 P.2d 932, 934-935 (Alaska 1983) (holding that exclusion might be appropriate under a state rule of evidence, as opposed to on constitutional grounds, but declining to decide question because Posse Comitatus Act was not violated). See generally Note, Fourth Amendment and Posse Comitatus Act Restrictions on Military Involvement in Civil Law Enforcement, 54 Geo. Wash. L. Rev. 403 (1986): Note, The Posse Comitatus Act as an Exclusionary Rule: Is The Criminal to Go Free Because the Soldier Has Blundered?, 61 N. Dak. L. Rev. 107 (1985). /13/ The phrase "posse comitatus" is derived from the early common law and refers to the entire population of a county, above the age of 15, from whom the sheriff may draw to aid him in the execution or enforcement of the law. See Black's Law Dictionary 1324 (4th ed. 1968). See p. 35, infra. /14/ This is true, even though "(t)he Coast Guard * * * is a military service, and an important branch of the armed services" (United States v. Johnson, No. 85-2039 (May 18, 1987), slip op. 10 n.12). /15/ By law, the National Guard is not part of the Army or Air Force except when it has been ordered into active federal service. See 10 U.S.C. 3078, 3079, 3495 (Army National Guard); 10 U.S.C. 8078, 8079, 8495 (Air National Guard). When it is not in federal service, the National Guard is controlled by the states (see Maryland v. United States, 381 U.S. 41, 46-47 (1965)); and, despite the fact that the Guard's organization, training and equipment are fully coordinated with those of the federal armed forces, the Posse Comitatus Act does not apply (32 C.F.R. 213.10(b)(2)) when states use the Guard as a police force. See generally Gilligan v. Morgan, 413 U.S. 1 (1973); Report of the National Advisory Commision on Civil Disorder 274-279 (1968). On the other hand, whenever the National Guard is called into federal service and thus does become potentially subject to the Posse Comitatus Act (see 10 U.S.C. 3499, 8499), using the Guard to "execute th(e) laws" is expressly authorized by statute (10 U.S.C. 3500, 8500) and, therefore, would not violate the Act. /16/ The further exception from the Posse Comitatus Act for law enforcement activity "expressly authorized by the Constitution" has been a source of considerable ambiguity; and this ambiguity reduces still further the value of the Act as a "reliable guidepost" (Pet. App. 24a) of Fourth Amendment values. Compare Sterling v. Constantin, 287 U.S. 378, 399 (1932) ("take Care" clause vests discretion to use military force), and In re Neagle, 135 U.S. 1, 64 (1890), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644-645 (1952) (Jackson, J., concurring) (Congress has restricted the President's authority to determine whether military force may be used); 41 Op. Att'y Gen. 313, 318-319, 326, 331 (1957) (there is constitutional authority to use military force that may not be restricted by Congress) with 9 Op. Att'y Gen. 516, 518-519 (1860) (military force may only be used in the manner prescribed by Congress); H.R. Conf. Rep. 97-311, 97th Cong., 1st Sess. 121 (1981) (there is inherent authority to use military force to protect federal property) with H.R. Rep. 97-71, 97th Cong., 1st Sess. Pt. 2, at 6 n.3 (1981) (there are no constitutional exceptions to the Posse Comitatus Act); see also Note, Honored in the Breech: Presidential Authority to Execute the Laws with Military Force, 83 Yale L.J. 130, 132-137 (1973). /17/ There is simply no unifying theme in the disparate express authorizations of the use of military force. See, e.g., 16 U.S.C. 1861(a) (enforcement of the Fishery Conservation and Management Act); 22 U.S.C. 408 (preventing illegal arms exports); 42 U.S.C. 97 (enforcing quarantines and health laws affecting vessels in port); 50 U.S.C. 220 (preventing unlawful removal of vessels and cargoes detained under the customs laws). Moreover, it was not until 1982 that the Army's express authority to enforce the laws protecting members of Congress was extended to include the protection of Cabinet officials and Justices of the Supreme Court. See 18 U.S.C. 351, as amended by Pub. L. No. 97-285, Sections 1, 2(a), 96 Stat. 1219. /18/ 10 U.S.C. 331, 332 and 334 can be traced to the Act of May 2, 1792, ch. 28, Sections 1-3, 1 Stat. 264. That Act established procedures for calling out the militia when federal assistance was requested by a State or when federal laws could not be enforced by the ordinary civil authorities. It was enacted without any suggestion that the Fourth Amendment, then barely a year old, might inhibit such uses of the military. See 3 Annals of Cong. 551-555, 574-580 (1792). The 1792 Act was repealed and reenacted three years later, Act of Feb. 28, 1795, ch. 36, Sections 1-10, 1 Stat. 424-425, at which time Congress removed the requirement that a judge or Congress certify the necessity for using military force. 10 U.S.C. 333, in turn, derives from the Ku Klux Klan Act of 1871, ch. 22, Section 3, 17 Stat. 14. /19/ The court of appeals in this case missed the point when it held (Pet. App. 22a n.8) that the 1982 amendments are irrelevant to the Fourth Amendment analysis because they were not in effect when the seizures at Wounded Knee occurred. While the provisions are not themselves directly applicable to this case, they demonstrate the infinite malleability of the statute, which, on that account, cannot reasonably be read to embody a constitutional standard. /20/ Congressman Bethune contended that "(i)n reading some of the court decisions right on up to and including the decisions of the U.S. Supreme Court, I found some very strong language which indicates that many people who have given thoughtful consideration to this issue see the business of posse comitatus and this particular law that we are discussing here today as approximating a constitutional right to keep separate from civilian law enforcement the use of military force, the use of military might" (127 Cong. Rec. 15669 (1981)). /21/ Representative Sawyer later asked Conyers "what article of the Constitution he (wa)s talking about." Conyers replied, "(w)ell, if the gentleman in his years of legal research and wealth of legal experience needs a constitutional citation to figure out whether this is constitutional or not, I am puzzled. Fifty Members have taken the floor and have suggested that there is a constitutional question. Every court case has suggested that there is a potential constitutional infirmity in this whole question of bringing the military into civilian law enforcement" (127 Cong. Rec. 15686 (1981)). /22/ Proponents of the 1982 legislation in the House characterized the Posse Comitatus Act as a source of "confusion" (127 Cong. Rec. 15666 (1981) (Rep. Fish)) and firmly denied that it was intended broadly to enact "some wonderful basic principle (that) * * * the military (is) not to become involved in civilian matters" (Posse Comitatus Hearings 4 (testimony of Rep. Bennett)). Senate sponsors termed the Act "a considerable stumbling block to effective surveillance and interdiction of narcotics smugglers" and insisted that effective law enforcement was not possible "without some change in the law or a broader interpretation of posse comitatus" (127 Cong. Rec. 2005 (1981) (Sen. Chiles)). /23/ In the course of its deliberations, Congress considered a proposal to give the military the even broader authority to assist federal agents in making arrests and seizures in narcotics cases. See H.R. Rep. 97-71, supra, Pt. 1, at 163-164, 203. Although Congress ultimately refused to confer this additional authority, it did so for policy reasons, and not because a majority believed that the Constitution itself prohibited such a broader grant of responsibility to the military. See, e.g., 127 Cong. Rec. 14979 (1981) (Rep. Hughes); id. at 14980-14981 (Rep. Dornan); id. at 14982 (Rep. White); id. at 15659 (Rep. Hughes); id. at 15667 (Rep. Fish); id. at 15668 (Rep. White); id. at 15672 (Rep. McClory); see also H.R. Rep. 97-71, supra, Pt. 2, at 11. /24/ "While the views of subsequent Congresses cannot override the unmistakable intent of the enacting one, such views are entitled to significant weight, and particularly so when the precise intent of the enacting Congress is obscure." Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (citations omitted). See also Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 665 n.3 (1985); Bell v. New Jersey, 461 U.S. 773, 784 (1983); NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). As we show below, pp. 30-39, infra, the precise intent of the Congress that in 1878 enacted the Posse Comitatus Act is far from clear (although plainly it was not to establish a standard of reasonableness under the Fourth Amendment). /25/ A precursor of the Posse Comitatus Act had been proposed but not enacted during the second session of the Forty-fourth Congress. See Siemer & Effron, Military Participation in United States Law Enforcement Activities Overseas: The Extraterritorial Effect of the Posse Comitatus Act, 54 St. John's L. Rev. 1, 18-24 (1979); Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am. Crim. L. Rev. 703, 704-709 (1976). Responding to perceived misuse of the Army to support "carpetbag" governments during the 1876 elections, the Democratic-controlled House attached a rider to an army approprations bill designed to prohibit the use of the Army "in support of the claims, or pretended claim or claims, of any State government, or officer thereof, in any State, until such government shall have been duly recognized by Congress." 5 Cong. Rec. 2119, 2152 (1877). After the Republican-controlled Senate refused to agree to the House bill (id. at 2156-2162, 2215-2216; see also id. at 2241, 2247-2249), President Hayes, newly elected, called a special session of Congress to enact an appropriation for the Army. 6 Cong. Rec. 50 (1877). Because steps to withdraw federal troops from the South had in the meantime been undertaken (see Siemer & Effron, supra, 54 St. John's L. Rev. at 20 & n.88), an Army appropriation was passed during the special session without a renewed attempt to attach prohibitions on domestic use of the military. Act of Nov. 21, 1877, ch. 1, 20 Stat. 1. /26/ Kimmel defended the amendment because he believed that it was constitutionally improper to use the Army to execute the laws -- but not, as the court of appeals supposed in the present case, because the Army is a military force but rather because it is a federal force. See 7 Cong. Rec. 3579-3581, 3583-3584 (1878). Citing "the grouping of the powers conferred on Congress" by Article I, Kimmel drew a line between the "war power" and the power "to execute the laws, suppress insurrections, and repel invasions" (id. at 3581). Having drawn this distinction, Kimmel argued (ibid.): These two powers are as distinct as are the means to be employed for the exercise of them, the Army for defense against external foes, the militia for the suppression of internal resistance, the Army to be created by Congress, because war is a subject of national jurisdiction only; the militia to be created jointly by Congress and the States, because the execution of the laws of the Union and the suppression of insurrections may involve questions of disputed jurisdiction. Kimmel thereafter confirmed that his objection to the use of the Army in law enforcement lay in its federal -- and not military -- character. He argued (id. at 3583) that it is clear that "not only" did the Framers "not intend that the standing Army * * * should be used for the execution of the laws * * * but * * * also that they did intend that the local militia should be the only reliance for the suppression of domestic violence." Kimmel also "demand(ed) * * * that, in obedience to the plain letter of the Constitution, the militia of the country be organized * * * that * * * it may be employed when necessary for the execution of the law" (ibid.). Supporters of Kimmel's proposed amendment likewise objected to the use of the Army in domestic disturbances because it was a federal force -- not because it involved military force. See, e.g., id. at 3538 (Rep. Hewitt); id. at 3679 (Rep. Wright); id. at 3684 (Rep. Cox). /27/ Indeed, the Air Force was only added to the Act when the military laws of the United States were codified. Pub. L. No. 84-1028, Section 18(a), 70A Stat. 626. This addition apparently was based on the savings clause in the National Security Act of 1947, ch. 343, Section 305(a), 61 Stat. 508, in which laws applicable to the Army were made applicable to the newly created Air Force. Otherwise, in the 1956 codification the only changes made in the Posse Comitatus Act were "to conform to the style and terminology used in title 18," within which, Congress determined, the Posse Comitatus Act "more properly" belonged. H.R. Rep. 970, 84th Cong., 1st Sess. 727 (1955); S. Rep. 2484, 84th Cong., 2d Sess. 736 (1956). /28/ In addition, Knott's amendment barred use of any of the money appropriated by the 1878 Act "to pay any of the expenses incurred in the employment of any troops in violation" of this provision and established criminal penalties for violation of the Act. 7 Cong. Rec. 3845 (1878). /29/ The version of the bill offered in the Senate differed in two principal ways from the House version. First, the Senate sponsors deleted the phrase "under the pretext," presumably in order to defuse the more overtly partisan flavor of the House rider. Second, the Senate amendment sanctioned the use of the Army for law enforcement whenever "authorized by the Constitution" -- in recognition of the fact that Congress "cannot limit the power of the President as authorized and granted by the Constitution" (7 Cong. Rec. 4240 (1878) (Sen. Windom)). /30/ Two Senate supporters of the Posse Comitatus Act confirmed in yet another way that the Act was not designed to separate the military from all law enforcement functions. Senators Merrimon and Hill contended that it was improper for the Army to execute the law in the "ordinary" (7 Cong. Rec. 4243 (1878) (Sen. Merrimon)) or "proper" (id. at 4247 (Sen. Hill)) sense. These Senators equated "executing the laws" with executing the "processes of the courts," and argued that the latter is always a function of civil officers. The Army's role, on the other hand, was to "put() down" "insurrections" -- a function that the two Senators broadly defined as "opposition to the execution of the law when that opposition is too great for the civil arm to suppress." Ibid. (Sen. Hill); see also id. at 4243-4245 (Sen. Merrimon). /31/ Even with this limited meaning, the Posse Comitatus rider engendered significant opposition in the Senate. See 7 Cong. Rec. 4241 (1878) (Sen. Blaine); ibid. (Sen. Windom); ibid. (Sen. McMillan); id. at 4241-4242 (Sen. Edmunds); id. at 4242 (Sen. Hoar); id. at 4296 (Sen. Edmunds); id. at 4297 (Sen. Kirkwood); id. at 4297-4298 (Sen. Matthews); and id. at 4301 (Sen. Christiancy). In response to this criticism, the Senate sponsors of the Posse Comitatus Act strove to minimize its significance. Senator Kernan denied that the proposed legislation would make unlawful anything "which by fair implication" was an authorized use of the Army, and suggested that the word "expressly" was superfluous. Id. at 4242, 4246. Similarly, Senator Bayard denied "that there is a diminution of any power under the law or the Constitution by this proposed section." Id. at 4296. He further agreed to a proposal to strike the word "expressly," describing it as "perhaps too strong an expression" and conceding that "if the Army were necessarily employed it would be a power lawfully exercised." Ibid. Bayard, moreover, emphasized that he viewed the Posse Comitatus Act as merely the statement of a "wholesome" "truism" that was required to placate the House. Ibid. /32/ See also Amendment II ("(a) well regulated Militia" is "necessary to the security of a free State"). /33/ As Story put the matter in his Commentaries on the Constitut-on Section 1181 (1833): Cases may occur, and indeed are contemplated by the constitution itself to occur, in which military force may be indispensable to enforce the laws, or to suppress domestic insurrections. Where the resistance is confined to a few insurgents, the suppression may be ordinarily and safely confided to the militia. But where it is extensive, * * * it may be important and even necessary to employ regular troops, as at once the most effective, and the most economical force. See also In re Debs, 158 U.S. 564, 582 (1895) ("the army of the Nation, and all of its militia, are at the service of the Nation to compel obedience to its laws").