Martial Law: Can Governors Take This Drastic Step?

The concept of martial law is often associated with the use of the military for law enforcement, with civilian authority being replaced by a military commander who assumes virtually unlimited authority to govern an area. While there is no universal definition of martial law, it is generally understood as the use of military personnel to dramatically assist or replace a nation's normal legal system during emergencies. In the United States, the President is not explicitly granted the power to declare martial law by the Constitution or federal law, and the Supreme Court has never specifically ruled on this issue. However, several presidents throughout history have declared martial law, and the Insurrection Act and Posse Comitatus Act provide a legal framework for deploying federal forces domestically during insurrections or emergencies. While governors cannot call for martial law, they can request federal assistance during an insurrection, and state constitutions generally allow governors to impose martial law.

Governors of Guam and the US Virgin Islands can declare it

While the Constitution does not define martial law, and it does not specify who can declare it, several presidents and state governors have imposed or approved declarations of martial law throughout American history. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, almost all state constitutions allow the state governor or legislature to impose martial law.

Two federal statutes (48 U.S.C. §§ 1422, 1591) authorize the territorial governors of Guam and the US Virgin Islands to declare martial law under certain circumstances. Neither statute grants any power to the president. These statutes are the 1792 Calling Forth Act, the 1795 Militia Act, the 1807 Insurrection Act, the 1861 Suppression of the Rebellion Act, and the 1871 Ku Klux Klan Act. The 1792 Act and parts of the 1871 Act are no longer in force, but their text and legislative history are still relevant.

The governor of a state may declare martial law when authorized by state law, and federal courts will likely defer to the governor's decision. However, the Constitution and valid federal laws will still apply, and judicial review will be available in federal court. The scope and limits of martial law are unclear until Congress and state legislatures enact new laws to better define them.

The United States has a long history of declaring martial law, especially during the Civil War, when it was imposed on border states like Missouri and Kentucky, where US forces clashed with Confederate insurgents. The Confederacy also heavily relied on martial law. Between the Civil War and World War II, martial law was declared at least 60 times. It was last used to counter resistance to federal desegregation decrees in the South.

In 1941, after the Japanese attack on Pearl Harbor, the territorial governor of Hawaii, Joseph Poindexter, declared martial law, suspending the writ of habeas corpus, conferring his governing powers to the local commanding General of the Army, and censoring the media. This led to the arrest of over 2,000 people within two days and the implementation of special identification cards for all residents.

The President can't, but they can deploy the National Guard

In the United States, the President does not have the authority to declare martial law. No federal statute explicitly authorises the President to do so. However, the President does have the power to deploy the National Guard in certain circumstances.

The Insurrection Act of 1807 is a federal law that empowers the President to deploy the National Guard and the military within the United States. This can be done to suppress civil disorder, insurrection, or rebellion. The Act provides a statutory exception to the Posse Comitatus Act of 1878, which usually limits the use of the military for law enforcement purposes.

The Insurrection Act outlines three circumstances in which the President can invoke it: when requested by a state's legislature or governor if the legislature cannot be convened, to address an insurrection that makes it impractical to enforce the law, or to address an insurrection, domestic violence, unlawful combination, or conspiracy that results in the deprivation of constitutionally secured rights.

It is important to note that the President's power to deploy the military domestically is not absolute. The deployment of the military should be a last resort and respect the sovereignty of the states. Additionally, the President cannot unilaterally deploy the military into a non-consenting state without using the statutory mechanism provided by the Insurrection Act.

In summary, while the President of the United States cannot declare martial law, they do have the authority to deploy the National Guard and the military within the country under specific conditions, primarily through the Insurrection Act.

State governors have the power to impose it

While the US Constitution does not define martial law, and it does not specify who can declare it, state governors have the power to impose it. This is because, while the Constitution does not explicitly grant the president the power to declare martial law, almost all state constitutions allow the state governor or legislature to impose it.

There are several examples of state governors imposing martial law. In 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law, citing "riots and tumult" resulting from a dock worker's strike. The National Guard was called in to open the docks, and they were empowered to make arrests and try detainees or turn them over to the courts. In 1934, Minnesota Governor Floyd B. Olson placed the city of Minneapolis under martial law and deployed the National Guard due to escalating violence during the Minneapolis general strike. In 1931, the governor of Texas declared martial law in parts of East Texas due to what he called an insurrection. In 1906, following an earthquake, federal troops were pressed into martial law service in San Francisco. They were posted throughout the city, and all dynamite was confiscated to destroy buildings in the path of fires to prevent the fires from spreading.

State governors have the power to impose martial law, but this power is not unlimited. For example, in 1935, the court held that the governor's takeover of the state highway commission was unjustified because there was no evidence of a state of war or disorder. In another case from 1939, the governor was enjoined from employing martial law to disenfranchise voters on the basis of sex and race.

In addition to state governors, two federal statutes (48 U.S.C. §§ 1422, 1591) authorize the territorial governors of Guam and the US Virgin Islands to declare martial law under certain circumstances.

Martial law suspends local laws and civil authority

In the United States, martial law refers to when the military temporarily assumes control in place of civilian authorities. It occurs when the army takes over a civilian area and imposes its own rules. This is a "dramatic departure from normal practice in the United States," as federal laws usually prevent the military from acting within the country.

When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended. The commanding officer then substitutes temporary laws and military tribunals. The authority of a military commander under martial law is virtually unlimited, although Department of Defense personnel are limited in what they can do to enforce civil law.

In the US, there is no federal statute that explicitly authorises the president to declare martial law. However, there are statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically. The Insurrection Act, for example, allows the president to deploy troops to suppress an insurrection in any state, upon the request of its legislature or governor.

Historically, martial law has been declared numerous times in the US, including during the Civil War, when it was imposed on border states like Missouri and Kentucky, and in the 90 years between the start of the Civil War and the end of World War II, when it was declared at least 60 times. More recently, martial law was declared in San Francisco in 1934 due to riots and tumult resulting from a dock worker's strike, and in Hawaii from 1941 to 1944 following the Japanese attack on Pearl Harbor.

The military steps in to assume governance

While there is no universal definition of martial law, it often refers to the use of the military for law enforcement. This is distinct from simply calling upon military members to assist during civil unrest or natural disasters. Martial law is considered to be the use of military personnel to dramatically assist or completely replace a nation's normal legal system in times of emergency.

In the United States, there is no federal statute that explicitly authorises the president to declare martial law. However, two federal statutes (48 U.S.C. §§ 1422, 1591) authorise the territorial governors of Guam and the US Virgin Islands to declare martial law under certain circumstances. Additionally, under Section 251, if there is an insurrection in a state, the governor can request federal aid, and the president may deploy the National Guard or the armed forces to suppress the insurrection.

When martial law is declared, the government assumes governance of the area, suspending local laws, civil authority, and sometimes local judiciaries. The commanding officer substitutes temporary laws and military tribunals, giving the military commander virtually unlimited authority to govern the area.

In the past, state governors in the US have imposed or approved declarations of martial law. For example, in 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law due to riots and tumult resulting from a dock worker's strike. The National Guard was called in to open the docks, and they were empowered to make arrests and try detainees. In another instance, the governor of Texas declared martial law in parts of East Texas due to an insurrection, and the military enforced oil production limits in those counties.

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