Martial Law: Presidential Power Play During Elections?

The question of whether a president can declare martial law during an election is a complex one. While the U.S. Constitution does not explicitly define or grant the president the power to declare martial law, it has been done by several presidents throughout history. Martial law refers to instances when the military assumes governance of an area, typically during emergencies or when civilian authority has failed. While the Supreme Court has held that states can declare martial law, it has never specifically held that the president can. Thus, the president's authority to declare martial law remains unclear, with scholars and legal experts divided on the matter.

Martial law and the US Constitution

The US Constitution does not define martial law and does not specify who can declare it. However, throughout American history, the federal and state governments have declared martial law over 60 times. The Supreme Court has held that states can declare martial law, but it has never specifically held that the president can. Therefore, it is unclear whether the president can legally declare martial law.

Some scholars believe the president has the executive power to declare martial law. Others believe the president needs congressional authorization to impose martial law in a civilian area. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws usually prevent the military from acting within the country.

The Posse Comitatus Act, passed on June 18, 1878, prevents federal troops from enforcing domestic law. However, the Insurrection Act provides an exception, allowing the use of active-duty or National Guard troops for federal law enforcement in cases of "rebellion against the authority of the US".

Martial law can be imposed when civil rule fails, and military authority temporarily replaces it in a time of crisis. It refers to instances when a nation's armed forces step in and assume the governance of an area, usually when civilian authority has stopped functioning due to an insurrection or natural disaster. When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended, and a military commander enforces temporary laws and military tribunals.

While the US Constitution does not explicitly grant the president the power to declare martial law, there are two competing theories regarding the source of this power. One 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 other theory argues that the Constitution's enumerated war powers of the legislative and executive branches 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.

The Insurrection Act and martial law

The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents and state governors have imposed or approved declarations of martial law throughout US history, the Constitution and federal law do not explicitly authorise the president to declare martial law. Therefore, it is unclear whether the president can legally declare martial law.

The Insurrection Act of 1807 is a federal law that empowers the US president to deploy the military and federalised National Guard troops within the US in particular circumstances. These circumstances include suppressing civil disorder, insurrection, rebellion, or domestic violence, or to enforce the law in certain situations. The Act provides a "statutory exception" to the Posse Comitatus Act of 1878, which limits the use of military personnel for law enforcement within the US. Before invoking the Insurrection Act, the president must publish a proclamation ordering the insurgents to disperse.

The Insurrection Act has been invoked numerous times throughout US history. For example, Presidents George Washington and John Adams used it in response to early rebellions against federal authority, and President Abraham Lincoln invoked it at the start of the Civil War. In the late 19th and early 20th centuries, it was invoked during labour conflicts, and in the 20th century, it was used to enforce federally mandated desegregation. In 2006, the George W. Bush administration considered invoking the Act to intervene in the state of Louisiana's response to Hurricane Katrina, but this was potentially unconstitutional, politically difficult, and inconsistent with past precedent. On June 1, 2020, President Donald Trump warned that he would invoke the Act in response to the George Floyd protests.

While the Insurrection Act permits the military to assist civilian authorities, it does not authorise martial law. The Supreme Court clarified in Sterling v. Constantin (1932) that courts may review the lawfulness of the military's actions once deployed, even if the president has invoked the Insurrection Act.

The US President's powers

Martial Law

Martial law is a "dramatic departure from normal practice in the United States". It refers to instances when a nation's armed forces assume the governance of an area, usually when civilian authority has stopped functioning. In the US, martial law has been declared over 60 times, by both federal and state officials.

Presidential Powers

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. Some scholars argue that the President has the executive power to declare it, while others believe the President needs Congressional authorization.

Wartime Powers

During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. The US President, as Commander in Chief, has the power to conduct war and maintain public order and peace. In this context, the President may have the authority to declare martial law, but this has never been explicitly confirmed by the Supreme Court.

In conclusion, while the US President has significant powers, the authority to declare martial law is not clearly defined. The President's powers in this area are subject to interpretation and may depend on the specific circumstances. The President's ability to declare martial law during an election would likely depend on whether the election was considered a time of crisis or emergency, and whether there was a perceived threat to public order and peace.

State governors' powers

The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents have declared martial law throughout history, the Constitution does not explicitly grant them this power. Some scholars argue that the president has the executive power to declare martial law, while others believe congressional authorization is required. Thus, it is unclear whether the president can legally declare martial law during an election or otherwise.

Governors are directly elected in all states and territories, serving four-year terms in most states, except for New Hampshire and Vermont, which have two-year terms. They have considerable control over government budgeting and the appointment of many officials, including judges. Governors also typically have the power to veto state bills, with some states allowing for a gubernatorial veto to be overridden by a majority or two-thirds vote. Additionally, in 47 of the 50 states, governors can appoint someone to fill a vacant US Senate seat until a special election is held.

In the event of a vacancy in the governor's office, the lieutenant governor typically succeeds the governor in 49 states and territories. Governors have significant powers, but they are also subject to checks and balances, with their powers potentially moderated by the state legislature and other elected executive officials.

Martial law in US history

The US Constitution does not define martial law and does not specify who can declare it. However, 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. Therefore, it is unclear whether the president can legally declare martial law. Scholars are divided on the issue. Some believe the president has the executive power to declare martial law, while others argue that the president needs congressional authorization to impose martial law in a civilian area.

The first time the Supreme Court upheld a declaration of martial law was in 1843 in Rhode Island. In 1849, the Court held in Luther v. Borden that state declarations of martial law were conclusive and therefore not subject to judicial review. In 1866, the Supreme Court ruled that President Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional in areas where the local courts were still in session.

Martial law has been declared at least 68 times in the United States. Some notable instances include:

• New Orleans during the Battle of New Orleans
• Great Chicago Fire of 1871
• 1906 San Francisco earthquake
• Omaha race riot of 1919
• Lexington riots of 1920
• Hawaii after Japan's attack on Pearl Harbor in 1941
• Civil Rights Movement in response to the Cambridge riot of 1963

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