Martial Law: Can Outgoing Presidents Take This Step?

The topic of whether an outgoing president can declare martial law is a complex one. While the US Constitution does not explicitly grant the president the power to declare martial law, there are certain provisions and historical precedents that suggest a president may have the authority to do so in specific circumstances. For instance, the Insurrection Act allows the president to deploy troops to suppress an insurrection or enforce laws without a request from the affected state. However, this is not the same as declaring martial law, and the act emphasizes the role of the president in enforcing existing laws rather than replacing them with military rule. Ultimately, the power to declare martial law may lie with both the president and Congress, and any declaration of martial law by state officials must abide by the US Constitution and is subject to review by federal courts.

Can a Leaving President Call for Martial Law?

The US President's power to declare martial law

The US Constitution does not explicitly grant the president the power to declare martial law. However, some scholars argue that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the authority to declare martial law. The Posse Comitatus Act, enacted in 1878, prevents the US military from participating in civilian law enforcement activities, which limits the president's ability to declare martial law.

The Insurrection Act of 1807 allows the president to deploy the military to address domestic disturbances, terrorism, and insurrection, but it does not explicitly authorize the declaration of martial law. The Guarantee Clause of the Constitution grants authority to the federal government as a whole and requires a request for help from the affected state before the federal government can act in cases of "domestic violence."

Historically, the US President has used the military within the country's borders, such as during the Whiskey Rebellion, but these acts did not constitute a formal declaration of martial law. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. Instead, state governors or legislatures have more commonly declared martial law within their respective states.

In summary, while there is scholarly debate about the president's power to declare martial law, the US Constitution does not explicitly grant this authority, and federal laws like the Posse Comitatus Act further limit the president's ability to do so.

Martial law declared by Congress

The concept of martial law has no established definition in the United States, and the exact scope and limits of martial law are dangerously unclear. However, 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 particular area.

The Constitution of the United States does not explicitly grant the president the power to declare martial law, and it does not define martial law or specify who can impose it. The Supreme Court has never ruled that the president or federal government can declare martial law, and there are no existing federal statutes that authorize the president to do so.

Some scholars argue that the Constitution's enumerated war powers give both Congress and the president the power to declare martial law. Articles I and II of the Constitution give each branch some control over America's military forces. However, the Posse Comitatus Act, passed by Congress in 1878, prevents the United States military from participating in civilian law enforcement activities, which are typically associated with martial law.

While the president has ample authority under current law to deploy troops to assist civilian law enforcement, a unilateral declaration of martial law by the president would not survive a legal challenge under Youngstown. This is because the Constitution gives most of the relevant authority to Congress, and the president cannot act against Congress's wishes in this area.

Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. Congress has also enacted a wide variety of laws that regulate when and where the military may be used domestically, which further restricts the president's ability to declare martial law.

State officials declaring martial law

While the US Constitution does not explicitly grant the President the power to declare martial law, state officials can declare martial law within the borders of their respective states. The Constitution's enumerated war powers give Congress and the President the power to declare martial law, and the Commander-in-Chief clause establishes that the President is in charge of the military forces. However, the Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities, and the Insurrection Act of 1807 allows the President to deploy the military to put down rebellions and support local law enforcement.

State constitutions typically allow the governor or legislature to impose martial law. When state officials declare martial law, they assume governance of an area, suspending local laws, civil authority, and sometimes local judiciaries. The commanding officer then enforces temporary laws and military tribunals, giving the military commander virtually unlimited authority. While the Supreme Court has held that states can declare martial law, the exact scope and limits of martial law remain unclear and subject to interpretation.

Martial law and the Insurrection Act

The US Constitution does not explicitly grant the president the power to declare martial law. However, according to national security law scholar Joseph Nunn, when federal or state governments declare martial law, they assume governance of an area, suspending all local laws, civil authority, and sometimes, local judiciaries. The military commander is then given virtually unlimited authority to govern the area, instituting temporary laws and military tribunals.

Some scholars argue 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. Articles I and II of the Constitution give each branch some control over America's military forces. Article II, Section 2, lists the following presidential powers:

> "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The Insurrection Act, on the other hand, is a federal law that empowers the president to deploy the US military and federalized National Guard troops within the US in specific circumstances, such as suppressing civil disorder, insurrection, or rebellion. The Act, which was first enacted in 1792, has been invoked numerous times throughout American history, including by George Washington and John Adams in response to early rebellions against federal authority, and by Abraham Lincoln at the start of the Civil War. The Insurrection Act does not authorize martial law; instead, it permits the military to assist civilian authorities, not replace them.

The Insurrection Act has been criticised as a law that is dangerously vague and in urgent need of reform to prevent abuses of power. While the Act can be used to suppress insurrections, quell civil unrest or domestic violence, and enforce the law when it is being obstructed, there are few constraints on this presidential power. Neither Congress nor the courts play a role in deciding what constitutes an obstruction or rebellion, and the law does not limit what actions military forces may take once deployed.

Historical examples of martial law

The concept of martial law in the United States refers to instances when a region, state, city, or the entire nation is placed under the control of a military body. The Constitution does not explicitly grant the president the power to declare martial law. However, scholars argue that the Constitution's enumerated war powers give both Congress and the president the authority to impose martial law.

New Orleans, 1814-1815:

During the Battle of New Orleans, martial law was imposed in New Orleans. This was the first instance of martial law in the United States.

Kentucky, Maryland, and Missouri, 1863:

On September 15, 1863, President Abraham Lincoln imposed Congressionally authorized martial law on these three states during the U.S. Civil War. He suspended habeas corpus and civil rights, targeting prisoners of war, spies, draft dodgers, and those aiding the enemy. The Supreme Court later ruled that Lincoln's suspension of habeas corpus was unconstitutional in areas with functioning local courts.

Chicago, 1871:

Following the Great Chicago Fire of 1871, Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city on October 9, 1871.

San Francisco, 1906:

Martial law was declared in San Francisco after the 1906 earthquake.

Omaha, 1919:

Local leaders declared martial law during the Omaha race riot of 1919 to protect themselves from mob violence.

West Virginia, 1920-1922:

During the West Virginia Coal Wars (1920-1921), martial law was declared in Mingo County, West Virginia. Federal troops, led by an army officer acting under the Suspension Clause of Article I of the US Constitution, jailed union miners without any trials. The military occupation ended with the trial of Sid Hatfield, a prominent miner.

Hawaii, 1941-1942:

After the Japanese attack on Pearl Harbor in December 1941, Hawaii was placed under martial law. This led to unusual circumstances, such as the arrest of a stockbroker named Harry White by military police, despite his civilian status and the nature of his alleged crime (embezzlement).

Minneapolis, 1934:

Governor Floyd B. Olson declared martial law in Minneapolis during the general strike of 1934.

These examples demonstrate the varied circumstances under which martial law has been imposed in the United States, whether by state or federal officials.

Frequently asked questions