Martial Law: Can Governors Institute It?

Martial law is a broad and complex topic, with a long history in the United States. It refers to the use of the military for law enforcement, and while there is no universal definition, it is generally understood as the use of military personnel to assist or replace a nation's legal system during emergencies. In the US, the President, state governors, and in limited cases, local military commanders can declare martial law. This power is not without constraints, and the exact scope of martial law is often unclear due to sparse and inconsistent legal precedents. This power has been used extensively throughout US history, with nearly every state governor having the authority to impose it within their state borders.

Martial law and the US Constitution

Martial law in the United States refers to times when a region, state, city, or the entire country was placed under the control of a military body. 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 on military assistance during emergencies or civil unrest.

The US Constitution does not specifically define martial law. However, it grants Congress the power to raise and support armies, declare war, and make laws for carrying out a war. The President, as commander-in-chief, has the authority to deploy troops to assist civilian law enforcement, but they cannot unilaterally declare martial law.

State governors have the power to impose martial law within their states, but their decisions are subject to judicial review and constitutional constraints. For example, in Joyner v. Browning (1939), a governor was enjoined from employing martial law to disenfranchise voters based on sex and race. States may declare martial law when authorized by state law, and federal courts typically defer to the governor's decision. However, the exact scope and limits of martial law remain unclear due to sparse and inconsistent legal precedents.

The Insurrection Act and the Posse Comitatus Act are two laws that govern the use of federal forces in domestic roles, but their constitutionality is often questioned. The Insurrection Act requires the President to issue a proclamation ordering insurgents to disperse before invoking the Act, while the Posse Comitatus Act prohibits federal forces from assisting in domestic law enforcement unless directed by the President under specific circumstances.

State governor's powers

In the United States, martial law refers to instances in which a region, state, city, or the entire country is placed under the control of a military body. While there is no universal definition of martial law, it often involves the use of the military for law enforcement. This does not necessarily include the presence of federal or state military members during times of emergency or civil unrest.

State governors have the power to impose martial law within their state borders. This power is more clearly established for state governors than for the US president. However, there are significant limits to this power. States may only declare martial law when authorized by state law, and their conduct will still be constrained by the Constitution and valid federal laws. The exact scope and limits of martial law remain unclear due to sparse and inconsistent Supreme Court precedent and a lack of specific legislation.

State governors can request federal assistance during an insurrection within their state, particularly if the state legislature cannot be rapidly convened. Federal forces may be deployed to maintain order if a state cannot or will not protect its citizens. The Posse Comitatus Act prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws.

Historically, martial law has been imposed by state governors in several instances, including in Boston in 1774, Virginia in 1775, New York in 1776, and Maryland in 1963.

Historical examples of martial law

Martial law has been declared several times throughout history, often during times of war, rebellion, or natural disaster. Here are some notable historical examples:

New York, 1776:

Following the British capture of New York City in 1776, martial law was imposed to restore order and assert British authority. Governor William Tryon retained his title, but military commanders took control of the city's administration, limiting his power.

New Orleans, 1814:

During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. He encountered a diverse and divided populace, including Anglo-Americans, Creoles, free people of colour, and enslaved individuals. To maintain order, Jackson imposed strict curfews and travel restrictions on all residents and declared that anyone challenging his authority would be considered a spy or traitor, leading to mass arrests.

Idaho, 1892:

The governor of Idaho instituted martial law after serious labour unrest in the mining industry. Armed conflict had erupted between striking miners and their employers, with workers even resorting to dynamiting a mining facility.

Hawaii, 1941:

Hawaii was placed under martial law after the Japanese attack on Pearl Harbor in 1941. This was initially declared by local military officials during World War II and later approved and expanded by President Franklin Roosevelt to include the incarceration of Japanese-Americans on the West Coast.

Pakistan, 1977:

After a period of civil disorder, General Muhammad Zia-ul-Haq overthrew civilian leader Zulfikar Ali Bhutto and imposed total martial law in July 1977. Unstable areas were brought under control through indirect military action, and civilian government resumed following General Zia's death in 1988.

Taiwan, 1949-1987:

After the Nationalist-led central government of China retreated to Taiwan in 1949, martial law was imposed to suppress Communist activities. It was not lifted until 1987, making it one of the longest periods of martial law in modern history.

Australia, 1828-1832:

During the Black War, a period of violent conflict between British colonists and Aboriginal Australians in Tasmania, Lieutenant-Governor George Arthur declared martial law in 1828. It provided legal immunity for killing Aboriginal people and remained in force for over three years, the longest period of martial law in the history of British colonies in Australia.

Federal laws and limits

While martial law can be declared by a state governor, there are significant limits to their powers. The US Constitution and federal laws constrain the states' conduct under the declaration, and federal courts are likely to defer to a state governor's decision. The Posse Comitatus Act, enacted in 1878, prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws.

The US Constitution grants Congress the power to raise and support armies, and to declare war. This power extends to all legislation essential to the vigorous and successful prosecution of war, except those that interfere with the command of forces and the conduct of campaigns. The president, as commander-in-chief, has the authority to deploy troops to assist civilian law enforcement, but not to replace them.

The exact scope and limits of martial law are unclear due to sparse and inconsistent legal precedents. The Supreme Court precedent is old and inconsistent, and there is a lack of legislation specifically addressing martial law. This has led to competing interpretations and potential disputes by executive officials seeking to use military forces aggressively.

The last time martial law was declared at the state level was in 1963 when the governor of Maryland imposed it on the city of Cambridge in response to clashes between racial justice advocates and segregationists.

Military involvement in law enforcement

In the United States, martial law refers to an area being placed under the control of a military body. This can occur at the regional, state, city, or national level. The US President and Congress can impose martial law nationally, and in nearly every state, the governor has the power to impose martial law within their state borders.

Historically, martial law has been declared in response to civil unrest, war, or as a means to exert control or authority. For example, in 1774, Boston was placed under martial law by the British Parliament in response to the Boston Tea Party. General Thomas Gage, the military governor, enforced measures such as closing the port and restricting town meetings to quell dissent. In 1814, General Andrew Jackson imposed martial law in New Orleans during the War of 1812 due to concerns about potential disloyalty and panic among a diverse and divided populace. Jackson implemented strict curfews and travel restrictions, and anyone challenging his authority was arrested.

The involvement of the military in law enforcement is not a typical occurrence in domestic contexts. The Posse Comitatus Act of 1878 removed the military from regular civil law enforcement due to the abuses that occurred during the Civil War and the Reconstruction. However, there are legislated exceptions to this Act. Congress has allowed the use of the military in cases of domestic violence, protection of federal property, and the enforcement of certain federal laws and court orders. Additionally, in 1981, Congress enacted legislation providing for military cooperation with civilian law enforcement to address the growing drug problem in the United States.

While the military is not commonly involved in domestic law enforcement, they may be called upon in exceptional circumstances, as outlined by Congress, or when a state of martial law is declared.

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