Keith Mack
The question of whether a president can unilaterally declare martial law is a complex one, with legal opinions varying. 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 history, neither the Constitution nor federal law explicitly authorises the president to do so. The Supreme Court has also never explicitly held that the president can declare martial law. Some scholars believe the president has the executive power to declare martial law, while others argue that congressional authorisation is required.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US Constitution does not define martial law and does not specify who can declare it. |
| Several presidents and many state governors have imposed or approved declarations of martial law throughout American history. | |
| The Supreme Court has held that states can declare martial law, but it has never specifically held that the president can. | |
| Congress has the power to declare war and to provide by law for carrying on war. | |
| The modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances." | |
| Some scholars believe the president has the executive power to declare martial law, while others believe the president needs congressional authorization. | |
| Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. | |
| Martial law occurs when the military assumes temporary control over various civilian authorities. | |
| Martial law refers to instances when a nation's armed forces step in and assume the governance of an area. | |
| Martial law can be validly and constitutionally established by supreme political authority in wartime. | |
| The president can call the military into action to help local governments after a natural disaster, but its help is usually limited. | |
| The president lacks the authority to replace civilian authorities with federal troops but has ample authority under current law to deploy troops to assist civilian law enforcement. |
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What You'll Learn
- The US Constitution does not specify who can declare martial law
- The US President can suspend habeas corpus and civil rights
- Martial law refers to the military assuming temporary control over civilian authorities
- Congress might be able to authorise a presidential declaration of martial law
- Martial law has been used in a limited number of circumstances
The US Constitution does not specify who can declare martial law
Throughout history, the federal and state governments have declared martial law over 60 times, with some sources stating at least 68 instances. It has been declared in response to violent civil unrest, natural disasters, labour strikes, wars, invasions, and riots or civil unrest. For example, in 1900, state officials declared martial law in response to the Akron Riot and the Galveston hurricane. In 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. In another instance, in 1941, Hawaii was placed under martial law following the Japanese attack on Pearl Harbor.
Martial law refers to instances when a nation's armed forces assume the governance of an area, stepping in when civilian authority has stopped functioning. When martial law is declared, the military assumes temporary control over various civilian authorities, and the commanding officer substitutes temporary laws and military tribunals for local laws, civil authority, and judiciaries. The authority of a military commander under martial law is virtually unlimited.
The imposition of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment and the supervision of law enforcement by the judiciary. Article 1, Section 9 of the US Constitution states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The suspension of habeas corpus allows for the substitution of military rule for civil authority, but only in the locality of active war and only until the courts are reinstated.
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The US President can suspend habeas corpus and civil rights
The US Constitution does not define martial law and does not specify who can declare it. While the President can call the military to help local governments after a natural disaster, federal laws usually prevent the military from acting within the country. However, the modern interpretation of the Constitution allows the president and state officials to declare "degrees of martial law in specific circumstances".
The Habeas Corpus Suspension Act of 1863 was an Act of Congress that authorized the US President to suspend the right of habeas corpus in response to the American Civil War. It also provided for the release of political prisoners. President Abraham Lincoln signed the bill into law on March 3, 1863, and suspended habeas corpus under the authority it granted him six months later. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy", as well as on draft dodgers.
The US Supreme Court has ruled that states can declare martial law, but it has never specifically held that the President can. However, several presidents throughout history have declared martial law.
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Martial law refers to the military assuming temporary control over civilian authorities
Martial law refers to instances when a nation's military assumes temporary control over various civilian authorities. It is a "dramatic departure from normal practice in the United States," as federal laws typically prevent the military from acting within the country.
When martial law is declared, the military commander's authority is virtually unlimited, and all local laws, civil authority, and sometimes local judiciaries are suspended. The commanding officer then substitutes temporary laws and military tribunals in their place.
In the United States, the President alone cannot declare martial law without the prior authorization of Congress. However, the President can call on the military to assist local governments in times of crisis or natural disaster. The US Constitution does not define martial law and does not specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never explicitly stated that the President can. Several presidents throughout history have declared martial law, but it is unclear whether they had the legal authority to do so.
The modern interpretation of the Constitution allows the President and state officials to declare "degrees of martial law in specific circumstances." Some scholars believe the President has the executive power to declare martial law, while others argue that congressional authorization is required.
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Congress might be able to authorise a presidential declaration of martial law
The US Constitution does not define martial law, nor does it specify who can declare it. While the President can call on the military to help local governments after a natural disaster, the Constitution does not explicitly grant the President the power to declare martial law. In fact, the Supreme Court has never explicitly held that the President can declare martial law.
However, the modern interpretation of the Constitution allows the President and state officials to declare "degrees of martial law in specific circumstances". Some scholars believe the President has the executive power to declare martial law. This interpretation stems from the fact that the President has ample authority under current law to deploy troops to assist civilian law enforcement.
On the other hand, others believe the President needs congressional authorization to impose martial law in a civilian area. This interpretation is supported by the fact that Congress has the power to raise and support armies, and to declare war. Therefore, Congress might be able to authorize a presidential declaration of martial law. This interpretation is also supported by the fact that the Supreme Court has held that states can declare martial law, and that state officials do have the power to declare martial law, albeit within the bounds of the US Constitution and subject to review in federal court.
While the legal questions surrounding martial law remain unanswered, it is clear that the President cannot unilaterally declare martial law without the prior authorization of Congress.
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Martial law has been used in a limited number of circumstances
In the United States, martial law has been used in a limited number of circumstances. It has been declared nine times since World War II, and in five instances, it was designed to counter resistance to federal desegregation decrees in the South.
Martial law was declared in New Orleans during the Battle of New Orleans, and after major disasters, such as the Great Chicago Fire of 1871, and the 1906 San Francisco earthquake. It has also been declared during riots, such as the Omaha race riot of 1919, the 1920 Lexington riots, and the Cambridge riot of 1963 during the Civil Rights Movement. Local leaders also declared martial law to protect themselves from mob violence, such as in Nauvoo, Illinois, during the Illinois Mormon War, and in Utah during the Utah War. It was also declared in response to chaos associated with protests and rioting, such as the 1934 West Coast waterfront strike, and in Hawaii after Japan's attack on Pearl Harbor in 1941.
In 1845, Nauvoo was stripped of its charter for abuse of authority after Smith declared martial law and called out the Nauvoo Legion, an organised city militia of about 5,000 men, to protect Nauvoo from outside violence. Brigham Young, who was later removed as governor, ordered the people in Salt Lake City, Utah, to burn their homes and retreat. In 1857, tension between the Utah territory and the federal government escalated due to the influence of theodemocracy in Governor Brigham Young's semi-theocratic government, Utah's rejection of federal appointees, and acceptance of polygamy.
In 1861, secessionists severed railroad links around Baltimore to prevent the passage of federal troops southward. Union General Benjamin Butler then took over the administration from civilian authorities, despite lacking federal authority. On September 15, 1863, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri. Lincoln also suspended habeas corpus and civil rights throughout the United States, which was later ruled unconstitutional by the Supreme Court.
While the Constitution does not define martial law and does not specify who can declare it, several presidents and many state governors have imposed or approved declarations of martial law throughout American history. However, the Supreme Court has never explicitly held that the president can declare martial law, and it is generally believed that Congress may be the only governmental branch with this authority.
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Frequently asked questions
No, the president cannot declare martial law without the prior authorization of Congress.
Martial law occurs when the military assumes temporary control over various civilian authorities.
The legal basis for martial law is unclear. The US Constitution does not define martial law and does not specify who can declare it.
Yes, several presidents throughout history have declared martial law.
