Martial Law: Can A President Enact It?

The concept of martial law in the United States refers to times when a region, state, city, or the entire nation is placed under the control of a military body. While the US President is the Commander-in-Chief of the country's armed forces, the Constitution does not explicitly grant them the power to declare martial law. This power is shared with Congress, which can raise, support, and govern armies, as well as declare war. The Insurrection Act also allows the President to deploy the military domestically to perform law enforcement functions, which may resemble martial law in practice. However, the President cannot unilaterally declare martial law, and any use of the military as a domestic police force is a departure from American tradition.

The US President's power to call for martial law

Martial law occurs when the military assumes temporary control over various civilian authorities, including local laws, civil authority, and sometimes local judiciaries. The commanding officer substitutes temporary laws and military tribunals, giving them virtually unlimited authority to govern an area. The US President, as Commander-in-Chief, has extensive authority over the military and can deploy troops domestically to perform law enforcement functions. This power is derived from the Insurrection Act and Title 32, which allow the President to decide when and where to use the US armed forces within the country.

However, the Constitution does not explicitly grant the President the power to declare martial law. The legislative history of the Insurrection Act indicates that Congress considered and removed language authorizing the President to declare martial law. This suggests that Congress is aware of martial law and chose not to grant the President this power. Instead, the power to declare martial law may lie with Congress, which has the authority to declare war and provide for the prosecution of war.

Despite this, there have been instances in US history where martial law has been declared, and the military has been used to maintain order. For example, in 1906, federal troops were stationed in San Francisco after an earthquake to maintain order and prevent fires from spreading. In another instance, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War. These instances demonstrate that while the President may have the ability to deploy the military domestically, it may not constitute a formal declaration of martial law.

In conclusion, while the US President has significant power over the military and can deploy troops domestically, the power to declare martial law is ambiguous. The Constitution does not explicitly grant this power to the President, and Congress has historically removed language that would authorize it. However, there have been instances of martial law-like situations declared by the President, demonstrating the complexity and evolving nature of this issue.

Martial law and the right to habeas corpus

The concept of martial law in the United States is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. It also refers to the supervision of law enforcement by the judiciary. The imposition of martial law may be accompanied by the suspension of habeas corpus, but they are distinct concepts. The suspension of habeas corpus allows the government to detain and hold individuals without charge, but it does not imply an unusual role for the armed forces.

The US Constitution does not explicitly grant the President the power to declare martial law. However, the President can call on the military to help local governments after a natural disaster or to suppress insurrection. The President's power to declare martial law is further limited by the Supremacy Clause, which states that the US Constitution, federal laws, and treaties are the "supreme Law of the Land," preventing states from overriding them. Additionally, the Supreme Court has ruled that even under martial law, state officials are bound by the US Constitution and valid federal laws.

Throughout history, habeas corpus has been suspended federally only once, in 1863 during the Civil War. At that time, President Abraham Lincoln imposed Congressionally authorized martial law in Kentucky, Maryland, and Missouri, suspending habeas corpus and civil rights throughout the United States. Lincoln's proclamation was later challenged in Ex parte Milligan, and the Supreme Court ruled that the imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still operational.

The Insurrection Act and Title 32 grant the President extensive authority to deploy the military domestically to perform law enforcement functions, which may resemble martial law in practice. However, the military's authority under these acts is substantially less extensive than under martial law.

Instances of martial law in US history

Martial law in the United States refers to instances when a region, state, city, or the entire country was placed under the control of a military body. While the US President and Congress have the power to impose martial law, the concept is limited by several court decisions handed down between the American Civil War and World War II.

Boston, 1774:

The British Parliament passed the Intolerable Acts in response to the Boston Tea Party, with the Massachusetts Government Act effectively placing Boston under martial law. General Thomas Gage, the military governor, enforced these measures to suppress colonial resistance and maintain control.

Virginia, 1775:

Lord Dunmore, the royal governor of Virginia, issued a proclamation declaring martial law and offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists. This move aimed to disrupt the colonial rebellion by weakening their labour force and encouraging support from enslaved people.

New Orleans, 1814-1815:

General Andrew Jackson declared martial law during the Battle of New Orleans in the War of 1812.

Oklahoma, 1932:

Governor William "Alfalfa Bill" Murray declared martial law during a nonviolent dispute between the state government and oil producers over oil production limits.

Chicago, 1871:

In response to the Great Chicago Fire, Chicago mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city.

Kentucky, Maryland, and Missouri, 1863:

President Lincoln imposed Congressionally authorized martial law on these states, allowing him to suspend habeas corpus and civil rights. Lincoln had previously suspended habeas corpus under his own authority in 1861.

Utah Territory, 1857-1858:

Governor Brigham Young declared martial law to facilitate armed resistance to approaching federal troops.

Indiana, 1935-1936:

Governor Paul V. McNutt declared martial law in Vigo County during a general strike.

Illinois, 1844:

Martial law was declared in Nauvoo during the Illinois Mormon War.

Hawaii, World War II:

Local military officials in Hawaii imposed martial law during World War II, which was later approved and expanded by Franklin Roosevelt's executive order to incarcerate Japanese-Americans on the West Coast.

The role of the military during martial law

In the United States, martial law has been declared nine times since World War II, with five instances designed to counter resistance to federal desegregation decrees in the South. During these periods of martial law, the military worked alongside civilian law enforcement to maintain order. However, it is important to note that the Department of Defense personnel are limited in their ability to enforce civil law.

While the President of the United States is the Commander-in-Chief of the military, the Constitution does not explicitly grant them the power to declare martial law. Instead, the Insurrection Act and Title 32 give the President extensive authority to deploy the military domestically to perform law enforcement functions. This deployment of troops may look and feel like martial law, but it is not the same as a formal declaration of martial law.

In other countries, martial law has been imposed during conflicts and occupations, where the absence of a stable civil government has led to an unstable population. For example, martial law was imposed in Beijing in 1989 following the Tiananmen Square protests, and in Egypt, states of emergency gave military courts the power to try civilians and detain those deemed threats to state security.

Martial law and the US Constitution

Martial law in the United States refers to times when a region, state, city, or the entire nation is placed under the control of a military body. This means that local laws, civil authority, and sometimes local judiciaries are suspended and replaced by temporary military rule. The military commander under martial law has virtually unlimited authority.

The US Constitution does not explicitly grant the President the power to declare martial law. However, the Constitution's enumerated war powers give both Congress and the President some control over America's military forces. The President is the Commander-in-Chief of the Army, Navy, and State Militias, and can deploy the National Guard or regular armed forces to suppress insurrection or enforce US laws. This deployment of troops, under the Insurrection Act, may resemble martial law, but it is not the same, and the military's authority is more limited.

The US Constitution's Guarantee Clause states that the federal government should protect each state against invasion and domestic violence. This grants authority to the federal government as a whole, but only allows unilateral federal action in the case of invasion. The Constitution also protects the right of habeas corpus, the right to a hearing and trial on lawful imprisonment, which can be suspended in cases of rebellion or invasion.

Historically, there have been instances of US Presidents imposing martial law, such as during the Civil War and the Civil Rights Movement. However, the term "martial law" is not always used, and the imposition of military rule is a significant departure from normal practice in the US.

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