Martial Law: Can Governors Wield This Power?

The question of whether a governor can enforce martial law is complex and depends on the country's specific laws and historical context. In the United States, for example, there is a history of governors imposing or approving declarations of martial law. However, the legal authority for doing so is not explicitly defined in the Constitution or federal law. While the Supreme Court has upheld the right of states to declare martial law, it has never specifically granted this power to the president. As a result, the president's ability to declare martial law remains ambiguous and has been a subject of debate.

State governors have imposed martial law in US history

In the United States, state governors have imposed martial law several times throughout history. While the Constitution does not define martial law and does not specify who can declare it, state governors have used their authority to enforce it in response to various situations, such as violent civil unrest, natural disasters, and labour strikes.

During the American Revolutionary Period, British authorities imposed martial law in several instances, including in Boston in 1774 and Virginia in 1775, to suppress colonial resistance and maintain control. General Thomas Gage, the military governor of Boston, enforced measures such as closing the port and restricting town meetings to quell dissent. In Virginia, Lord Dunmore, the royal governor, offered freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.

In subsequent years, state governors have continued to impose martial law in specific regions. For example, in June 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the influence of organised crime gangs. The National Guard assumed law enforcement duties and oversaw the first lawful elections in decades. Similarly, in 1961, Governor Patterson of Alabama declared martial law in response to the presence of "outside agitators" who were challenging racial segregation in the state.

In 1900, the Akron Riot and the Galveston hurricane led to declarations of martial law by state officials. In 1914, the imposition of martial law during the Colorado Coalfield War resulted in the Ludlow Massacre. In 1963, Maryland Governor J. Millard Tawes imposed martial law in Cambridge for over a year due to clashes between racial justice advocates and segregationists.

While the President of the United States has also declared martial law on several occasions, the Constitution does not explicitly grant them the power to do so. The Supreme Court has never specifically ruled that the President or the federal government can declare martial law. Instead, state constitutions generally allow the state governor or legislature to impose martial law when necessary, as long as it is authorised by state law.

The US President's power to declare martial law

The US Constitution does not explicitly grant the US President the power to declare martial law. However, some scholars argue that the President has the executive power to do so, while others believe that congressional authorization is required for the imposition of martial law in civilian areas. The Posse Comitatus Act, enacted in 1878, prohibits the US military from engaging in civilian law enforcement activities, except when expressly authorized by Congress.

The Insurrection Act of 1807 allows the President to deploy the military to address rebellions, domestic violence, and support local law enforcement. In 2006, the John Warner National Defense Authorization Act further expanded the President's powers, enabling them to declare martial law and assume command of National Guard units in each state without requiring the consent of state governors. However, this expansion of powers was short-lived, as it was repealed in 2008 due to opposition from Congress, state governors, and law enforcement.

Throughout history, the US President has exercised the power to declare martial law on several occasions. For example, President Lincoln suspended habeas corpus in 1861 during the Civil War, and in 1871, Chicago mayor Roswell B. Mason declared martial law after the Great Chicago Fire. While the Supreme Court has never explicitly ruled on the President's authority to declare martial law, the court did find that Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas with functioning local courts.

In summary, while the US President's power to declare martial law is not explicitly defined in the Constitution, they may have some authority to do so, especially during emergencies or with congressional authorization. However, the Posse Comitatus Act and other statutes regulating the domestic use of the military place important constraints on the President's ability to unilaterally declare and enforce martial law.

Instances of martial law in the US

Martial law has been declared over 60 times in the US, with some sources citing 68 instances. It is invoked in times of national emergency or violent civil unrest, placing the military in charge of law enforcement and policy decisions. Here are some notable instances of martial law in the US:

Boston, 1774:

In response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, including the Massachusetts Government Act, which placed Boston under martial law. General Thomas Gage, the military governor, enforced measures such as closing the port and restricting town meetings to quell dissent.

Virginia, 1775:

Lord Dunmore, the royal governor of Virginia, declared martial law on November 7, 1775. He offered freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists, disrupting the labor force and encouraging support for the British.

New Orleans, 1814:

Brevet Major General Andrew Jackson declared martial law in New Orleans and the surrounding areas to defend against a British offensive. He arrested a Louisiana senator and a federal judge who demanded a writ of habeas corpus.

Hawaii, 1941:

Governor John Poindexter "surrendered" Hawaii to the US military, leading to martial law and the internment of Hawaiians of Japanese descent.

Alabama, 1954:

Alabama Governor Gordon Persons placed Russell County under martial law due to the influence of organized crime gangs. The National Guard assumed law enforcement duties, shut down gang-controlled establishments, and oversaw lawful elections.

Alabama, 1961:

Governor Patterson of Alabama declared martial law in response to "outside agitators" who were challenging racial segregation in the state. These "agitators" were peaceful civil rights activists known as the "Freedom Riders."

Mormon Areas, 1843:

Mormon leaders have also declared martial law twice in areas they governed. The first instance was in Nauvoo, Illinois, where Joseph Smith, the founder of Mormonism, was accused of abusing his authority as mayor.

Martial law and the Supreme Court

The Supreme Court has never explicitly stated whether the federal government has the authority to declare martial law, and if so, whether the president could do so unilaterally or with congressional authorization. The Court's limited precedent on martial law is old, vague, and inconsistent, leaving the exact scope and limits of martial law unclear.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power and would likely be used by a court to determine whether a president's declaration of martial law exceeded their authority. According to Youngstown, when Congress has passed a statute on an issue, the president cannot act against Congress's will unless the Constitution grants the president conclusive and preclusive power in that area.

While the Supreme Court has not provided a clear answer, it has implied that the federal government can declare martial law. During the 19th century, the Court suggested in dicta that a federal martial law power was "implied in sovereignty" or justified by "necessity." However, it has never conclusively stated this, and its statements on the matter have been inconsistent.

The ambiguities in the law have led to calls for Congress to pass legislation that clearly defines the scope and limits of presidential powers, both for martial law and other domestic uses of the military. The lack of a clear definition of martial law and the unsettled nature of the law in this area have resulted in a dangerous ambiguity that could potentially allow the president to usurp the role of state governors.

The limits of a governor's power during martial law

While a governor can enforce martial law, their powers are limited by the Constitution and federal laws. Nearly all state constitutions allow the governor to impose martial law within the borders of their state. However, their actions must abide by the U.S. Constitution and are subject to review in federal court.

The scope and limits of martial law are often unclear, and the legal precedent surrounding it is sparse and confusing. This lack of clarity can lead to competing interpretations and disputes by executive officials. For example, in 1931, the governor of Texas declared martial law in parts of East Texas due to a purported insurrection. The governor ordered the military to limit oil production, but oil well owners argued that the executive and military orders violated the state and U.S. Constitutions.

Additionally, while a governor can declare martial law, the president can take command of the National Guard units of each state without the governor's consent and deploy troops to assist civilian law enforcement. The president's ability to order domestic troop deployments without declaring martial law is broad and can potentially usurp the role of governors.

Historically, martial law has been imposed at least 68 times in limited, usually local areas of the United States. It has been used in response to war or invasion, domestic war or insurrection, riot or civil unrest, labor disputes, natural disasters, and other reasons.

Frequently asked questions