Martial Law: Presidential Inauguration Amidst Unrest

The United States Constitution does not define martial law and does not specify who can declare it. Throughout history, several presidents have declared martial law, but the Supreme Court has never explicitly ruled that the president can declare it. The Posse Comitatus Act and the Insurrection Act impact the president's ability to declare martial law, with the former preventing the US military from participating in civilian law enforcement activities and the latter allowing the president to deploy military forces to address rebellions and domestic violence. Congress may be the only branch that can legally declare martial law, with the president requiring congressional authorization to impose it. So, while a new president can be inaugurated during martial law, the president may not have the authority to lift it without Congress.

The US President's lack of authority to declare martial law

The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents throughout history have imposed or approved declarations of martial law, neither the Constitution nor federal law explicitly authorises the president to do so. The Supreme Court has also never specifically ruled that the president can declare martial law. Therefore, it is unclear whether the president can legally declare martial law.

The power to declare martial law is a highly debated topic. Some scholars believe that the president has the executive power to declare martial law. Others argue that the president requires congressional authorisation to impose martial law in a civilian area. This suggests that Congress may be the only governmental branch that can declare martial law, and the president can only act according to its authorisation.

The Constitution Annotated notes that there are two competing theories regarding the source of the power to declare martial law. The first theory suggests that martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. The second theory posits that martial law does not come from any direct authority but instead arises from "the nature of things, being the law of paramount necessity".

While the president lacks the authority to declare martial law, they have ample authority under current law to deploy troops to assist civilian law enforcement. For example, the president can call on the military to help local governments after a natural disaster, such as a hurricane. However, their help is usually limited.

Congress' ability to authorize a presidential declaration of martial law

The US Constitution does not define martial law and does not specify who can declare it. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, the Court has implied that the federal government can declare it, but it has never stated this conclusively.

The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities. This Act strengthens the separation of powers between Congress and the president. The Insurrection Act of 1807 allows the president to deploy the military to assist civilian authorities with law enforcement. However, this does not authorize the president to declare martial law.

Some scholars believe that the president has the executive power to declare martial law. Others argue that 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.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power. According to Youngstown, when Congress has addressed an issue with a statute, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue. The Constitution does not grant the president such power over the issue of domestic military deployment; instead, it gives most of the relevant authority to Congress. Therefore, a unilateral declaration of martial law by the president would likely not survive a legal challenge.

Supreme Court precedent and constitutional law

The United States Constitution does not define martial law and does not specify who can declare it. The Supreme Court has never explicitly ruled that the president can declare martial law, and there is no federal law that authorises the president to do so. However, several presidents have declared or approved declarations of martial law throughout history.

The Supreme Court has held that state declarations of martial law are conclusive and not subject to judicial review. In Luther v. Borden (1849), the Court found that the Rhode Island legislature was within its rights to resort to the "rights and usages of war" to combat insurrection in the state. This case also established that martial law can be validly and constitutionally established by "supreme political authority" in wartime.

The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities, limiting the president's ability to declare martial law. On the other hand, the Insurrection Act of 1807 allows the president to deploy military forces to address rebellions and assist local law enforcement, providing a degree of authority to impose martial law.

While the president is the Commander-in-Chief of the armed forces, the extent of this power is determined by the nature of the situation and the principles of US institutions. The Supreme Court has implied that the federal government can declare martial law, but its statements have been inconsistent, leaving many legal questions unanswered.

State officials' power to declare martial law

The US Constitution does not define martial law and does not specify who can declare it. However, state officials do have the power to declare martial law, and almost all state constitutions allow the state governor or legislature to impose it. State officials have declared martial law in response to violent civil unrest, natural disasters, and to break labour strikes.

While the president lacks the authority to declare martial law, they can deploy troops to enforce the law in specific situations. The Insurrection Act of 1807, for example, allows the president to deploy military forces to put down rebellions and help local law enforcement deal with domestic violence. The Posse Comitatus Act, enacted in 1878, prevents the US military from participating in civilian law enforcement activities.

There is much ambiguity surrounding the power to declare martial law. The Supreme Court has never explicitly ruled that the president or federal government can declare it, and there is no clear indication of whether the president could unilaterally declare martial law or if Congress would first need to authorise it.

Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.

The Posse Comitatus Act and the Insurrection Act

The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law. This law embodies an American tradition that sees military interference in civilian affairs as a threat to both democracy and personal liberty. However, recent events have revealed dangerous gaps in the law’s coverage that Congress must address.

The Insurrection Act of 1807 allows the president to deploy military forces to put down rebellions within the United States and deploy the military to help local law enforcement deal with domestic violence. Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and allows the president to deploy the military to assist civilian authorities with law enforcement. That might involve soldiers enforcing a federal court order or suppressing an uprising against the government. The Insurrection Act does not authorize martial law. Instead, it generally permits the military to assist civilian authorities (whether state or federal), not take their place.

The Insurrection Act is dangerously vague and in urgent need of reform. The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so broad that it cannot possibly mean what it says. Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment.

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