America's Laws: Ever Unlawful?

The United States Constitution and founding documents do not mention the term 'martial law', nor has Congress passed a law specifying when it can be declared. However, the US military has been deployed domestically in the past, and there are federal laws in place that grant the president the power to do so. The Insurrection Act, for example, allows the US president to deploy military forces to suppress insurrections, rebellions, or domestic violence. This has been done several times in the past, including by President Eisenhower to enforce desegregation in Arkansas in 1957. While this is not the same as declaring martial law, the line between the two can be blurry. The US democratic system is not based solely on majority rule, and courts play an integral role in maintaining the rule of law and interpreting the Constitution and laws passed by Congress. If a law passed by Congress conflicts with the Constitution, the Constitution takes precedence. Several laws passed by Congress have been deemed unconstitutional by the Supreme Court of the United States, including the Child Labor Tax Act and parts of the Minimum Wage Law of the District of Columbia. State laws have also been deemed unconstitutional, such as a Louisiana Reconstruction Act that prohibited discrimination based on race or color in interstate commerce.

The Insurrection Act and martial law

In the United States, martial law is a vague term for when military authorities take control of civil governance and law enforcement. The US Constitution and founding documents do not mention martial law, and Congress has not passed a law specifying when it can be declared. The term "martial law" also lacks an established definition. However, it is generally understood as a power that allows the military to assume the role of civilian government during emergencies.

The Insurrection Act, on the other hand, is a federal law enacted in 1807 that empowers the President to deploy the military and federalised National Guard troops domestically to suppress civil disorder, insurrection, rebellion, or domestic violence. The Act allows the President to act when they perceive that unlawful conduct or civil rebellions hinder the enforcement of federal laws. The Insurrection Act has been invoked numerous times throughout American history, including by Presidents George Washington, John Adams, Abraham Lincoln, Ulysses Grant, Andrew Jackson, Rutherford Hayes, and Grover Cleveland.

While the Insurrection Act permits the military to assist civilian authorities, it does not authorise martial law. The President does not have the authority to declare martial law under current law. The Supreme Court clarified that while the President's decision to invoke the Insurrection Act is conclusive, courts may still review the lawfulness of the military's actions.

The Insurrection Act has been criticised as dangerously vague and in urgent need of reform to prevent abuses of power. There are few constraints on this presidential power, and the law does not limit the actions of military forces once deployed.

State laws and unconstitutionality

The concept of state laws being deemed unconstitutional is a well-established part of the US legal system. The US Constitution's Supremacy Clause gives federal law superiority over state law, and federal courts have consistently held that state laws cannot nullify federal laws. This is based on the principle that the Constitution was established directly by the people, as stated in its preamble: "We the people of the United States..."

The US Constitution and federal laws made under it are considered "the supreme law of the land". The final power to determine whether federal laws are unconstitutional has been delegated to the federal judiciary, specifically the US Supreme Court, under Article III of the Constitution. The Supreme Court has repeatedly rejected the theory of nullification, which holds that states may reject or nullify federal laws that they believe exceed the federal government's constitutional powers. The Court has also rejected the related idea of interposition, which suggests that a state has the right and duty to "interpose" when the federal government enacts laws that the state considers unconstitutional.

Despite the rejection of these theories, state laws can still be challenged on constitutional grounds. There are several examples of state laws being held unconstitutional by the Supreme Court, including:

• United States v. Peters (1809): A Pennsylvania statute that prohibited the enforcement of a federal court's sentence was deemed unconstitutional as it attempted to annul the judgment of a US court and destroy rights acquired under it.
• Fletcher v. Peck (1810): A Georgia statute that annulled the conveyance of public lands authorized by a prior enactment violated the Contracts Clause (Art. I, § 10) of the Constitution.
• McCulloch v. Maryland (1819): A Maryland law imposing a tax on notes issued by a branch of the Bank of the United States was held to be unconstitutional under the principle of national supremacy (Art. VI), which does not allow state taxation of federal government instrumentalities.
• Dartmouth College v. Woodward (1819): A New Hampshire law that altered a charter granted to a private corporation by the British Crown before the Revolution was found to violate the Contracts Clause (Art. I, § 10).

These cases demonstrate that while states cannot directly nullify federal laws, the Supreme Court plays a crucial role in interpreting the Constitution and ensuring that state laws comply with it. The Court's decisions are based on the principle that the power of the people, as expressed in the Constitution, takes precedence over the will of the legislature when there is a conflict.

The role of the Supreme Court

The Supreme Court has played a significant role in shaping the law in the United States by hearing cases that involve the interpretation of the Constitution and federal laws. For example, in the case of Bailey v. Drexel Furniture Co. (Child Labor Tax Case), the Supreme Court held that the Child Labor Tax Act was beyond the taxing power of Congress under the Constitution. In another case, Adkins v. Children's Hospital, the Supreme Court held that a minimum wage law for women in the District of Columbia interfered with freedom of contract under the Fifth Amendment.

The Supreme Court also hears cases involving state laws that are alleged to be unconstitutional. For example, in Wisconsin v. Philadelphia & Reading Coal Co., the Court held that a Louisiana law violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In Detroit United Ry. v. Michigan, the Court found that a Wisconsin law imposing an unconstitutional condition on foreign corporations violated the Constitution.

Additionally, the Supreme Court has ruled on cases involving the interpretation of federal laws and the powers of Congress. For instance, in Stern v. Marshall, the Court held that a counterclaim made during a bankruptcy proceeding did not fall under public rights exceptions allowing for Article III jurisdiction.

The Supreme Court's role in declaring laws unconstitutional is essential to maintaining the rule of law and ensuring that the rights of minorities are protected. The Court serves as a check on the power of Congress and prevents the majority from infringing upon the rights of minority groups.

The US Constitution and Congress

The US Constitution is the supreme law of the United States. It outlines the country's system of government and the basic rights of its citizens and permanent residents. The Constitution is interpreted by the courts, which also interpret the meaning of any laws passed by Congress.

Congress passes laws, but if a law passed by Congress conflicts with the Constitution, the Constitution takes precedence. The Supreme Court of the United States has the power to declare Acts of Congress unconstitutional in whole or in part. For example, the Child Labor Tax Act was held to be beyond the taxing power under Article I, § 8, clause 1, and an infringement of state authority.

While the US Constitution and Congress do not mention martial law, Congress has given the President the authority to use troops domestically to assist in civilian law enforcement activities. The Insurrection Act, for instance, allows the President to deploy the military to suppress insurrections, rebellies, or domestic violence. However, the use of the military as a domestic police force is a departure from American tradition and can be concerning.

The role of the President

The President of the United States has a significant role to play in the creation and enforcement of laws. While the President does not have the power to declare a law unlawful, they are responsible for signing bills into law and can also use their influence to propose and support legislation that aligns with their agenda.

The President's role in law-making begins with the State of the Union address, where they present their legislative agenda to Congress. This address sets the tone for the upcoming year and highlights the administration's priorities. The President can also propose legislation and work with Congress to draft and refine bills. While the President cannot vote on bills, they can lobby Congress and use their platform to generate public support for their preferred policies.

Once a bill is passed by Congress, it is sent to the President for approval. The President has the power to sign or veto the bill. If the President signs the bill, it becomes law. If they veto it, the bill is sent back to Congress, which can then override the veto with a two-thirds majority vote in both houses. This process allows the President to shape the country's legislation and ensure that the laws align with their agenda and the country's needs.

In addition to their role in law-making, the President is also responsible for enforcing the laws. This includes appointing federal judges and agency heads who will interpret and implement the laws, as well as directing the executive branch to take action on specific issues. The President can also use their executive powers to issue orders and directives that guide the implementation and enforcement of laws.

While the President does not have the explicit power to declare a law unlawful, they have the authority to challenge the constitutionality of a law through their enforcement powers. For example, if the President believes a law violates the Constitution, they can direct the Department of Justice not to defend it in court. This does not make the law unlawful, but it can lead to legal challenges and potentially a Supreme Court ruling on the law's constitutionality.

Furthermore, the President has the power to deploy military forces domestically to assist in civilian law enforcement. The Insurrection Act allows the President to use the military to suppress insurrections, rebellions, or domestic violence when necessary to enforce federal laws and maintain public order. This power gives the President significant influence over the enforcement of laws and can be seen as a form of checking the legality of a law through its application.

In conclusion, while the President of the United States does not have the explicit power to declare a law unlawful, they play a crucial role in the creation, enforcement, and interpretation of laws. Through their legislative influence, appointment powers, and executive actions, the President can shape the country's legal landscape and ensure that laws are implemented and enforced in a way that aligns with their agenda and the Constitution.

Frequently asked questions