Martial Law: Can Presidents Get A Third Term?

The Twenty-Second Amendment to the US Constitution, ratified in 1951, established term limits for the presidency, stating that no person shall be elected to the office of the President more than twice. This was done in response to Franklin D. Roosevelt, who was elected president four times from 1932 to 1944. Despite this, former President Donald Trump has expressed interest in serving a third term, with supporters claiming a loophole in the two-term constitutional limit. Moving on to the topic of martial law, while it has been declared nine times since World War II, the president's authority to declare it is unclear. The Constitution does not grant the president conclusive authority over the domestic use of the military, and legal scholars disagree on whether Congress must authorize a presidential declaration of martial law.

The US Constitution does not define martial law, nor does it specify who can declare it

The Constitution's silence on this matter has resulted in differing interpretations and scholarly opinions. Some scholars believe that the president has the executive power to declare martial law, while others argue that congressional authorization is necessary for the imposition of martial law in civilian areas. This ambiguity has resulted in a complex legal landscape surrounding the concept of martial law.

Throughout American history, the federal and state governments have declared martial law over 60 times, with some sources citing a higher number of at least 68 instances. These declarations have been made in response to various situations, including war or invasion, domestic war or insurrection, riot or civil unrest, labor disputes, and natural disasters. The Supreme Court has held that states can declare martial law, but it has never explicitly held that the president can.

Despite the lack of a clear constitutional framework, several presidents throughout history have imposed or approved declarations of martial law. For example, President Franklin D. Roosevelt approved a declaration of martial law in Hawaii during World War II, which led to the internment of Japanese Americans. Additionally, in 2006, President George W. Bush signed the John Warner National Defense Authorization Act, which granted the president the power to declare martial law and take command of National Guard units without state governors' consent.

In conclusion, while the US Constitution does not provide a definition or explicit authority for declaring martial law, it is clear that the concept has been invoked and utilized throughout American history. The complex legal landscape surrounding martial law highlights the need for further legislative clarification to define the scope and limits of this extraordinary power.

The Supreme Court has never explicitly ruled on whether the president can declare martial law

There are two competing theories regarding the source of the power to declare martial law. The first theory, known as the "law of paramount necessity," argues that the power to declare martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second 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.

Some scholars believe that the president has the executive power to declare martial law. They argue that the president's authority to declare martial law comes from Articles I and II of the Constitution, which give the president some control over America's military forces. Additionally, the Insurrection Act and Title 32 allow the president to deploy the military to assist civilian authorities with law enforcement activities.

However, others argue that the president needs congressional authorization to impose martial law in a civilian area. They point to the Posse Comitatus Act, which makes it illegal for federal military forces to participate in civilian law enforcement activities, and the Insurrection Act, which allows the president to deploy the military to put down rebellions and assist with domestic violence. These laws restrict the president's ability to use the military domestically and would likely be violated by a unilateral declaration of martial law.

While the Supreme Court has not directly addressed the issue, its 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power. This ruling suggests that the president would not have the constitutional authority to override the restrictions Congress has put in place, and a unilateral declaration of martial law would likely not survive a legal challenge.

Congress has passed laws that regulate the domestic use of the military, which may conflict with a presidential declaration of martial law

The Constitution of the United States does not define martial law and does not specify who can declare it. The Supreme Court has never explicitly stated whether the federal government has the power to declare martial law, and if so, whether the president could unilaterally declare it or whether it would require congressional authorization. However, 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 by passing a statute, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue.

Congress has passed a multitude of laws related to domestic military deployment, including the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non-Detention Act, and various other provisions within Title 10 of the U.S. Code. These laws regulate when and where the military may be used domestically and make it illegal for federal military forces to participate in civilian law enforcement activities. The Posse Comitatus Act, enacted in 1878, prevents the United States military from "participating in civilian law enforcement activities." 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.

The Insurrection Act and Title 32 give the president considerable authority to use troops domestically in ways short of martial law. They allow the president to deploy the military to assist civilian authorities with law enforcement activities whenever and wherever the president chooses. However, a deployment of troops under these statutes might appear similar to a declaration of martial law, and any use of U.S. armed forces as a domestic police force represents a departure from American tradition and carries inherent risks.

While the president has the power to deploy the military domestically in certain circumstances, a presidential declaration of martial law would violate the restrictions placed by Congress on the president's ability to use the military domestically. The Constitution does not grant the president "conclusive and preclusive" power over the issue of domestic military deployment, and a unilateral declaration of martial law by the president would not survive a legal challenge. Therefore, Congress has passed laws that regulate the domestic use of the military, which may conflict with a presidential declaration of martial law.

The Insurrection Act gives the president the authority to deploy the military domestically, which may appear similar to martial law

The US Constitution does not define martial law, nor does it specify who can declare it. The Supreme Court has held that states can declare martial law, but it has never explicitly held that the president can. Therefore, it is unclear whether the president can legally declare martial law. While several presidents throughout history have declared martial law, neither the Constitution nor federal law explicitly authorises the president to do so.

The Insurrection Act, enacted in 1792, grants the president the authority to deploy the US military domestically and use it for civilian law enforcement. This law, along with Title 32, leaves it almost entirely up to the president to decide when and where to use the US armed forces at home against Americans. A deployment of troops under the Insurrection Act might appear and feel very similar to martial law. However, the military's authority under the Insurrection Act is substantially less extensive than it would be under martial law.

The Insurrection Act authorises the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. For example, the Act allows the president to deploy troops to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" in a state that obstructs the execution of US laws. The Act is the primary exception to the Posse Comitatus Act, which makes it illegal for federal military forces to participate in civilian law enforcement activities.

The Insurrection Act has been criticised for being dangerously vague and in urgent need of reform. The Act fails to adequately define or limit when it may be used, giving the president significant power to decide when and where to deploy the US military domestically. In 2022, the Brennan Center for Justice submitted a proposal to the January 6 House committee to reform the Insurrection Act and clarify its vague language.

Martial law has been declared over 60 times in US history, including during the Civil War and World War II

The United States has a long history of declaring martial law, with over 60 instances of its use, including during significant events like the Civil War and World War II. While the exact definition of "martial law" is debated, it generally refers to the military taking over civilian governance and jurisdiction in an area, often during emergencies or when civilian authority has collapsed.

During the Civil War, martial law was imposed on border states like Missouri and Kentucky, where Union and Confederate forces clashed. This continued even after the war ended, with martial law being used to suppress colonial resistance and maintain control. For instance, in 1861, President Lincoln suspended habeas corpus to arrest members of the Maryland state assembly.

In the lead-up to World War II, Hawaii, then a US territory, was placed under martial law after the Japanese attack on Pearl Harbor in 1941. This lasted until 1944, and the military continued to control labor and designate certain individuals as "enemy aliens." During the war, the military assumed dictatorial powers, going beyond the scope of martial law, which was criticized by a federal judge after the fact.

Martial law has also been declared during other periods of civil unrest, insurrection, and natural disasters. For example, in 1871, it was declared after the Great Chicago Fire, and in 1919, during the Omaha race riot. In 1934, it was imposed during the West Coast waterfront strike, and in 1954, Alabama's Russell County was placed under martial law due to the influence of organized crime gangs.

While the president has considerable authority to deploy the military domestically, the power to declare martial law is more ambiguous. The Constitution does not explicitly grant this power to the president, and some believe it requires congressional authorization. However, several presidents have imposed or approved declarations of martial law throughout history.

Frequently asked questions