Martial Law: Can A President Act Alone?

The question of whether a president can invoke martial law on his own is a complex one, with no clear answer. While some scholars believe the president has the executive power to declare martial law, others argue that the president needs congressional authorization to impose it in civilian areas. The Constitution does not explicitly define or grant the power to declare martial law, and the Supreme Court has never specifically held that the president can. However, several presidents throughout history have declared or approved declarations of martial law. Federal laws such as the Posse Comitatus Act and the Insurrection Act impact the president's ability to declare martial law, with the former preventing the military from participating in civilian law enforcement without congressional approval, and the latter allowing the president to deploy the military to address rebellions and domestic violence.

The Insurrection Act

The Act does not define "insurrection", "rebellion", "domestic violence", or any other key terms used in setting forth the prerequisites for deployment. The Supreme Court decided that the question of whether an exigency requiring the militia to be called out has arisen belongs exclusively to the President to decide. However, the Supreme Court also clarified that courts may still review the lawfulness of the military's actions once deployed.

Posse Comitatus Act

In the United States, martial law refers to times when a region, state, city, or the entire nation is placed under the control of a military body. Both the US President and the US Congress have the power to impose martial law, as does the governor in nearly every state.

The Posse Comitatus Act is a federal law that limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States. Signed into law by President Rutherford B. Hayes on June 18, 1878, the Act bars federal troops from participating in civilian law enforcement without express authorization by law. The Act was passed in response to the military occupation of the former Confederate States by the US Army during the Reconstruction era (1865-1877) following the American Civil War.

The Act's name comes from the legal concept of posse comitatus, which refers to the authority of a county sheriff or other law officer to conscript any able-bodied person to assist in keeping the peace. The Posse Comitatus Act prohibits the use of soldiers instead of civilians in a posse comitatus.

The Posse Comitatus Act applies to the Army, Air Force, Navy, Marine Corps, and Space Force. The Coast Guard is not included in the Act, as it has explicit federal law enforcement authority on maritime law. The National Guard is rarely covered by the Act, as they usually report to the governor of their state or territory and are therefore free to participate in law enforcement if it is consistent with state law. However, when Guard personnel are called into federal service, they become subject to the Posse Comitatus Act until they are returned to state control.

There are several statutory exceptions to the Posse Comitatus Act, including the Insurrection Act, which allows the President to use the military to enforce federal law, suppress rebellions, or protect civil rights in a state.

Martial law history

Martial law in the United States refers to times when a region, state, city, or the entire nation was placed under the control of a military body. While the president can invoke the Insurrection Act, which authorises the use of the military for domestic disturbance, terrorism, insurrection, etc., the president cannot unilaterally declare martial law.

In US history, martial law has been imposed at least 68 times, mostly in limited, local areas. The US Constitution's Article 1, Section 9 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 concept of habeas corpus, or the right to a hearing and trial on lawful imprisonment, is closely tied to the concept of martial law in the United States.

In 1842, Rhode Island's experience with martial law, known as the "Dorr War," involved a dispute over the state's first constitution, which severely restricted voting rights. Thomas Dorr led a group of Rhode Islanders in organising a new constitution, holding elections, and declaring themselves the true government. The Rhode Island General Assembly responded by declaring martial law and deploying the state militia to suppress the rebellion. The US Supreme Court upheld the legality of this declaration in Luther v. in 1849.

In 1857, tensions between the federal government and the Utah territory, led by Governor Brigham Young, escalated due to the influence of theodemocracy in Utah's semi-theocratic government, its rejection of federal appointees, and acceptance of polygamy. Governor Young declared martial law to resist approaching federal troops, and hostilities ended in 1858 when Young accepted President James Buchanan's pardon and was removed from power.

In 1863, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri, allowing him to suspend habeas corpus and civil rights nationwide. The Supreme Court later ruled that this imposition was unconstitutional in areas with functioning local courts. In 1871, Chicago mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city in response to the Great Chicago Fire.

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, leading to mass arrests and the detention of striking workers. In 1906, federal troops were pressed into martial law service in San Francisco following the earthquake, and they were deployed again in 1914 during the Colorado Coalfield War, resulting in the Ludlow Massacre.

In 1919, local leaders declared martial law in Omaha, Nebraska, during a race riot to protect themselves from mob violence. In 1932, Oklahoma Governor William Murray declared martial law during a nonviolent dispute between the state government and oil producers over production limits. In 1933, Georgia Governor Eugene Talmadge declared martial law at the state Highway Board headquarters during a labour dispute. In 1935, Indiana Governor Paul V. McNutt declared martial law in Vigo County during a general strike.

Presidential powers

Some scholars believe the president has the executive power to declare martial law, while others argue that congressional authorization is required for the president to impose it in civilian areas. In this case, Congress would be the only governmental branch that can legally declare martial law, and the president would act according to its actions.

The Posse Comitatus Act, enacted in 1878, prohibits the US military from participating in civilian law enforcement without congressional approval. It was passed following President Lincoln's invocation of martial law during the Civil War, which was later deemed unconstitutional by the Supreme Court. The Insurrection Act of 1807, meanwhile, allows the president to deploy the military to address rebellions and assist local law enforcement in dealing with domestic violence.

In nearly every state, the governor has the power to impose martial law within state borders. Throughout US history, martial law has been declared at least 68 times, mostly by state or local officials.

Congress and martial law

Congress has historically played a significant role in shaping the understanding and application of martial law in the United States. While the US Constitution does not explicitly mention martial law, Congress's actions and legislation have helped define and constrain its use.

One notable example of Congress's involvement in martial law is the Posse Comitatus Act of 1878. This Act explicitly forbids the US military from engaging in domestic law enforcement activities without congressional approval, thereby setting a crucial limit on the use of martial law.

Congress has also been active in debating and enacting legislation related to martial law. In 1844, Congress passed a refund bill that symbolically endorsed former President Andrew Jackson's imposition of martial law in New Orleans. This incident marked a shift in how Americans understood martial law, as Jackson's pursuit of a refund set a precedent for justifying the violation of the Constitution and civil liberties during national emergencies.

Additionally, Congress has the authority to authorize a presidential declaration of martial law. While this power has not been conclusively decided, it underscores Congress's role in shaping the legal framework surrounding martial law.

Furthermore, Congress has held hearings and made amendments to the Insurrection Act, which is often associated with the declaration of martial law. In 2006, the John Warner National Defense Authorization Act gave the President new powers to use the military for domestic disturbances, terrorism, and insurrection. However, this expansion of presidential powers was met with opposition, and Senator Patrick Leahy of Vermont later sought to reverse these amendments.

In conclusion, while the US President and state officials also have the power to declare martial law, Congress plays a crucial role in defining, constraining, and authorizing its use through legislation, hearings, and historical precedent. The dynamic between Congress and the President regarding martial law continues to evolve, with legal scholars noting the sparse and confusing legal precedent surrounding it.

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