A 30-person “expeditionary medical support team” is being formed by the Department of Defense in response to a request by the Department of Health and Human Services.[1] The team will have 20 critical care nurses, 5 doctors trained in infectious disease, and 5 infectious disease protocol trainers.[2] In the next “week or so” the team should be assembled and will begin training at Fort Sam Houston in Texas.[3] The team is not to be sent to West Africa, but will remain in a “prepare to deploy” status for 30 days to be sent to areas in the United States as needed.[4] The deployment of military forces within the US raises some legal questions.
There are two main provisions that proscribe the deployment of regular military forces in the United States: the Posse Comitatus Act[5] and the Insurrection Act.[6] The Posse Comitatus Act states that unless the circumstances are expressly authorized by the Constitution or an act of Congress, anyone who uses the Army or Air Force to execute the laws will be fined or imprisoned for up to two years, or both. (This has been held to include the Navy and Marine Corps as parts of the Department of Defense.) The Insurrection Act gives the President the authority to deploy troops to enforce federal laws. While a short-lived amendment in 2007 allowed the President to deploy troops in case of an epidemic, the amendment was repealed in 2008, removing authority to deploy domestically in an epidemic.[7]
As there is little information other than the Pentagon news release it’s a bit hard to analyze right now. Given that the amendment that authorized deployment in an epidemic was explicitly repealed, the authority for deployment is questionable. The team might be able to deploy on the request of a state governor but not as long as they remain answerable to a military (vs. civilian) boss.
Sources below the cut.
[1] DOD, Statement from Pentagon Press Secretary Rear Admiral John Kirby on Department of Defense Support to Department of Health and Human Services, October 19; http://www.defense.gov/Releases/Release.aspx?ReleaseID=16986
[2] Id.
[3] Id.
[4] Id.
[5] 18 U.S.C. §1385; http://www.law.cornell.edu/uscode/text/18/1385
[6] 10 U.S.C. §§331-335; http://www.law.cornell.edu/uscode/text/10/331
[7] Wikipedia, Insurrection Act; https://en.wikipedia.org/wiki/Insurrection_Act
