Martial Law: Can A President Take This Step?

Martial law is a vague term that refers to when a nation's armed forces assume the governance of an area. It is typically a last resort, as it can be easily abused as a political tool to control the population. The U.S. Constitution does not define or specify who can declare martial law, and it is unclear whether the president can legally do so. While the president is the Commander in Chief of the armed forces, the Constitution grants Congress the power to declare war and provide for carrying on war. This power to declare war may extend to declaring martial law.

The Insurrection Act

The Act provides a "statutory exception" to the Posse Comitatus Act of 1878, which limits the use of military personnel under federal command for law enforcement purposes within the United States. Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule. The Act has been invoked many times throughout American history, including during labor conflicts in the late 19th and early 20th centuries, and to enforce federally mandated desegregation in the 20th century.

To invoke the Insurrection Act, the president must first issue a proclamation ordering the insurgents to disperse within a limited time. If the situation does not resolve itself, the President may issue an executive order to send in troops. The Act does not provide a criminal penalty for insurrection; this was introduced by the Confiscation Act of 1862. The Insurrection Act has been modified twice, in 1861 and 1871, and was originally enacted in 1792.

While the Insurrection Act grants the president significant power to decide when and where to deploy U.S. military forces domestically, critics worry that invoking the Act would consolidate federal power and give the president more leeway to use the military for domestic law enforcement.

The US Constitution

Some scholars argue that the President has the executive power to declare martial law, while others contend that congressional authorization is required for the President to impose martial law in civilian areas. The Supreme Court has held that states can declare martial law, but it has never explicitly held that the President can. Therefore, it remains unclear whether the President can legally declare martial law unilaterally.

In practice, several US Presidents have imposed or approved declarations of martial law throughout history, particularly in times of war, natural disasters, or civic disputes. For example, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War. Additionally, President Franklin D. Roosevelt approved the imposition of martial law in Hawaii following the Japanese attack on Pearl Harbor in 1941.

The role of Congress

Congress's role in authorizing martial law is a subject of debate. Some scholars argue that Congress may be the only governmental branch with the legal authority to declare martial law, while the President can only act with its authorization. This interpretation underscores the principle that Congress, not the Executive, should control the utilization of war powers in domestic policy. However, the absence of a clear constitutional framework for martial law creates a grey legal area, and there is no conclusive decision on whether Congress must authorize a presidential declaration of martial law.

Historically, there have been instances where Congress has played a role in the imposition of martial law. For example, in 1863, President Abraham Lincoln imposed Congressionally authorized martial law in Kentucky, Maryland, and Missouri. Additionally, in 1807, Congress passed the Insurrection Act, which was later expanded in 2006. This Act gives the President the authority to use the armed forces, including the National Guard, within US borders to restore order and enforce laws in limited circumstances. However, it is important to note that the Insurrection Act is distinct from martial law, as its purpose is to enforce the law rather than replace it.

In summary, while Congress has specific powers related to war and the utilization of armies, the role of Congress in declaring or authorizing martial law is not explicitly defined in the Constitution. The interpretation of Congress's authority in this context is subject to ongoing legal and scholarly debate, reflecting the complex nature of martial law in the United States.

Supreme Court precedent

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 do so unilaterally or with congressional authorization. However, 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.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power and would likely be used by a court to determine whether a president's martial law declaration exceeded executive authority. 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.

The Supreme Court precedent on martial law is old, sparse, vague, and inconsistent. There is no federal statute that defines what the term means, and the exact scope and limits of martial law remain unclear. The lack of clear precedent and legislation on martial law has led to competing interpretations, which could be disputed by executive officials seeking to use military forces more aggressively.

The Supreme Court has endorsed the constitutionality of martial law in specific cases, such as Luther v. Borden (1849), where the Court approved Rhode Island's declaration of martial law in response to "Dorr's War." In that case, Chief Justice Roger Taney wrote that states had an inherent right to declare martial law to defend themselves and promote public safety. However, the Court has never held that the federal government can impose martial law, and there is no legal basis for it to do so.

Historical examples

The United States Constitution does not define martial law and does not specify who can impose it. However, several presidents and state governors have imposed or approved declarations of martial law throughout American history.

New Orleans, 1814

General Andrew Jackson, who later became the seventh president of the United States, declared martial law in New Orleans during the War of 1812 to defend against an invading British army. After successfully leading the defence of the city, Jackson continued to enforce martial law for two months. The Louisiana Supreme Court later referred to Jackson's use of martial law as "trampling upon the Constitution and laws of our country." Jackson was held in contempt of court and fined $1,000, which he paid.

Nauvoo, 1845

Nauvoo, Illinois, was placed under martial law by Joseph Smith, who called out the Nauvoo Legion, a city militia of about 5,000 men, to protect the city from outside violence. Smith was arrested for treason against the state of Illinois and, while awaiting trial, was murdered by a mob. Nauvoo was later stripped of its charter for abuse of authority, leading to the Illinois Mormon War.

Kentucky, Maryland, and Missouri, 1863

On September 15, 1863, President Lincoln imposed Congressionally authorised martial law on these three states during the Civil War. Lincoln had previously suspended habeas corpus in 1861, allowing for the arrest of one-third of the Maryland state assembly.

Chicago, 1871

After the Great Chicago Fire of 1871, Chicago mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city. Martial law was lifted a few days later, after the fire was extinguished and no widespread disturbances occurred.

Hawaii, 1941

Hawaii was placed under martial law after the Japanese attack on Pearl Harbor in December 1941. In August 1942, military police in Honolulu arrested a civilian stockbroker named Harry White for embezzlement, a violation of civilian law.

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