Martial Law: Can A Lame Duck President Take Action?

The concept of a lame duck president refers to an incumbent at the end of their term, who, due to term limits, is no longer beholden to voters and may wield their remaining power in unexpected ways. While there are no constitutional limits on a lame-duck president's power, the question of whether any president can declare martial law is a complex one, with profound implications for democracy. Martial law refers to instances when a nation's military assumes the governance of an area, typically in response to a crisis or threat to public order. While the US Constitution does not define or specify who can declare martial law, it has been declared by presidents, state governors, and Congress throughout American history. However, the Supreme Court has never explicitly ruled that the president has the authority to do so, and legal scholars debate whether congressional authorization is required.

The US President's authority to declare martial law

The US Constitution does not define martial law and does not specify who can declare it. While several presidents have imposed or approved declarations of martial law throughout American history, the Constitution does not explicitly grant the president the power to declare it. The Supreme Court has also never specifically ruled that the president can declare martial law.

There are two competing theories regarding the source of the power to declare martial law. The first theory suggests that martial law does not come from any direct authority but rather "arises from the nature of things, being the law of paramount necessity." In other words, it is derived from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second theory argues that the Constitution's enumerated war powers of the legislative and executive branches grant both Congress and the president the power to declare martial law.

Some scholars believe that the president has the executive power to declare martial law, while others argue that congressional authorization is required for the president to impose martial law in a civilian area. This suggests that Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.

While the president can call on the military to assist local governments in the event of a natural disaster, the use of martial law gives the military commander virtually unlimited authority to govern an area, suspending all local laws, civil authority, and sometimes local judiciaries.

In conclusion, while there is no clear constitutional provision or legal precedent granting the US President the authority to unilaterally declare martial law, the president may have some influence in this area, particularly with the authorization of Congress.

Congress' role in authorizing martial law

The US Constitution does not define martial law and does not specify who can declare it. While several presidents and state governors have imposed or approved declarations of martial law throughout US history, the Constitution and federal law do not explicitly authorise the president to declare martial law. The Supreme Court has also never specifically ruled that the president or federal government can declare martial law.

Congress might be able to authorise a presidential declaration of martial law, but this has not been conclusively decided. Congress has, however, passed laws that give the president the power to declare martial law. For example, in 2006, Congress passed the John Warner National Defense Authorization Act, which gave the president the power to declare martial law and take command of the National Guard units of each state without the consent of state governors. In 1844, Congress also symbolically endorsed President Jackson's three-month-long imposition of martial law in New Orleans. In 1863, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri.

Some scholars believe that the president has the executive power to declare martial law. Others believe that the president needs congressional authorisation to impose martial law in a civilian area. According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States". Federal laws usually prevent the military from acting within the country. Although the president can call the military into action to help local governments after a natural disaster, its help is usually limited.

State officials' power to declare martial law

The US Constitution does not define martial law, nor does it specify who can declare it. While the Supreme Court has never explicitly ruled that the president can declare martial law, it has held that states can. State officials, including governors, do have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for assessing executive power. According to this ruling, when Congress has passed a statute on an issue, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power in that area.

State constitutions allow the governor or legislature to impose martial law. The power to declare martial law arises from the government's right and duty to "maintain public order" and keep the peace. This is especially relevant during wartime, when "supreme political authority" allows for the constitutional use of martial law.

State officials have declared martial law in response to violent civil unrest, natural disasters, and to break labour strikes. For example, in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to end a peaceful strike by the Western Federation of Miners.

While the exact scope and limits of martial law are unclear, it usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a specific area.

Historical instances of martial law declarations

While the US Constitution does not define martial law, nor does it specify who can declare it, there have been several instances of martial law being declared in American history.

One notable example of martial law being declared was during the American Revolutionary Period. In 1774, in response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, with the Massachusetts Government Act effectively placing Boston under martial law by shutting down its port and restricting town meetings. General Thomas Gage was appointed military governor to enforce these measures and quell any dissent. In 1775, Lord Dunmore, the royal governor of Virginia, also issued a proclamation declaring martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.

In the 19th century, martial law was declared in New Orleans, Louisiana, from December 12, 1814, to March 13, 1815, during the Battle of New Orleans in the War of 1812. Gen. Andrew Jackson was the declaring authority. In 1842, the Rhode Island General Assembly declared martial law, and in 1843, Rhode Island adopted a new constitution, which seemingly terminated the state of martial law.

In the 20th century, there were several instances of martial law being declared. In 1906, following the San Francisco earthquake, federal troops were pressed into martial law service, with all dynamite being confiscated to destroy buildings in the path of fires to prevent their spread. In 1914, the imposition of martial law climaxed during the Colorado Coalfield War. In 1919, local leaders declared martial law in Omaha, Nebraska, to protect themselves from mob violence during the Omaha race riot. In 1920, martial law was declared in Lexington, Kentucky, for similar reasons. In 1932, Oklahoma Governor William "Alfalfa Bill" Murray declared martial law during a nonviolent dispute between the state government and oil producers over oil production limits. In 1935, Indiana Governor Paul V. McNutt declared martial law in Vigo County, Indiana, during the General Strike of 1935 (Terre Haute). In 1938, Iowa Governor Robert L. Cochran declared martial law in Newton, Iowa, during the 1938 Maytag Corporation labor dispute. In 1941, Hawaii was placed under martial law after the Japanese attack on Pearl Harbor.

Constitutional constraints on martial law declarations

The Constitution of the United States does not define martial law and is silent as to who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances."

The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, it has held that states can declare martial law. Almost all state constitutions allow the state governor or legislature to impose martial law.

Some scholars believe the president has the executive power to declare martial law. They argue that the president's authority to declare martial law is deeply rooted in the constitutional framework of the United States. Central to this authority is the President's role as the head of the executive branch and Commander-in-Chief of the armed forces, as outlined in Article II of the Constitution. This grants the President significant discretion in matters of national security and emergency response.

Others believe the president needs congressional authorization to impose martial law in a civilian area. Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions. This interpretation is supported by the fact that the Constitution does not explicitly grant the president the power to declare martial law.

One key limitation on presidential authority to declare martial law is the principle of federalism, which delineates the respective powers of the federal government and the states. While the President may have authority over federal territories and military installations, the enforcement of martial law within a state requires the cooperation or consent of state and local authorities.

The Constitution also imposes constraints on the duration and scope of martial law declarations. The suspension of constitutional rights and liberties is permissible only to the extent necessary to address the immediate crisis or threat. Any attempt to abuse or exceed these powers may be subject to legal challenge and judicial review.

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