Martial Law: Presidential Term Limits And Emergency Powers

The US Constitution does not define martial law and is silent on who can impose it. While the president has used martial law throughout history, the Supreme Court has never explicitly ruled that the president can declare it. The Twenty-second Amendment, ratified in 1951, currently limits US presidents to two terms in office. This amendment was enacted due to concerns about executive overreach after Franklin D. Roosevelt's unprecedented third and fourth terms as president during World War II and the Great Depression.

Can a President Serve 3 Terms Martial Law?

The Twenty-Second Amendment limits US presidents to two terms

The Twenty-Second Amendment to the United States Constitution limits the number of times a person can be elected to the office of President to two terms. It also sets additional eligibility conditions for presidents who succeed their predecessors before their terms are up. The Amendment was a reaction to Franklin D. Roosevelt's election to an unprecedented four terms as president, which gave rise to concerns about a president serving unlimited terms.

The question of term limits for elected officials goes back to the first debates surrounding the Constitution’s ratification. When the concept of the office of the president was created, there were differing opinions on how long they should serve. Alexander Hamilton and James Madison envisioned a president who would be nominated by Congress and serve for life, but this raised concerns about the United States becoming an "elective monarchy". Other proposals for presidential terms were also met with a divided reception.

For 150 years, an unofficial two-term tradition was sustained, starting with George Washington, the first president of the United States, who voluntarily stepped down after two terms. However, in the 1940 and 1944 presidential elections, Franklin D. Roosevelt was elected for a third and fourth term, leading to greater questions about term limits. Roosevelt's extensive use of his executive powers during the Great Depression and World War II also raised concerns about the risk of executive overreach.

In 1947, two years after Roosevelt's death, the House of Representatives proposed Joint Resolution 27, calling for a set limit of two four-year terms for all future presidents. The proposed amendment was approved and sent to the states for ratification, and it was officially adopted as the Twenty-Second Amendment in 1951. Since then, all subsequent presidents have served no longer than two elected terms.

Presidents cannot unilaterally declare martial law

The US Constitution does not define martial law, nor does it specify who can declare it. While the Constitution's enumerated war powers give both Congress and the president the power to declare martial law, it does not explicitly grant the president the power to do so independently.

According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws typically prevent the military from acting within the country, and the Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement activities without express authorisation from Congress. While there are constitutional exceptions to the Posse Comitatus Act, none authorises the president to declare martial law.

Although the president can call on the military to assist local governments in the event of a natural disaster, their help is usually limited. When martial law is declared, the military assumes governance of the area, and the commanding officer substitutes temporary laws and military tribunals for local laws, civil authority, and judiciaries. This gives the military commander virtually unlimited authority to govern the area, which is a significant shift from the traditional boundaries between military and civilian power in the US.

While several presidents throughout history have imposed or approved declarations of martial law, the Supreme Court has never specifically held that the president can declare it. Therefore, it is unclear whether the president can legally do so unilaterally. Instead, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances," and the president may require congressional authorisation to impose martial law in a civilian area.

Congress might be able to authorise a presidential declaration of martial law

The US Constitution does not define martial law and is silent on who can impose it. However, the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law. While the president is the Commander-in-Chief of the armed forces, the Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress.

Congress has placed clear and wide-ranging restrictions on the president's ability to use the military domestically. A presidential declaration of martial law would violate these rules. The Insurrection Act and Title 32 allow the president to deploy the military to assist civilian authorities with law enforcement activities whenever and wherever he or she chooses. However, this does not amount to a declaration of martial law.

The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. The Court has also never indicated whether the president could unilaterally declare martial law or if Congress would need to authorize it. The 1952 Youngstown ruling provides a framework for analyzing exercises of executive power and would likely be used to determine whether a president's martial law declaration exceeded their 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.

Congress has expressed its will regarding the domestic deployment of the military in two ways. First, it has enacted laws regulating when and where the military may be used domestically. Second, the Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress. These laws are so comprehensive that Congress has "occupied the field," meaning that if the president were to use the military domestically without authorization, it would effectively be against Congress's will.

In summary, while the president has extensive authority to deploy the military domestically, a unilateral declaration of martial law would likely not survive a legal challenge. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided.

State officials can declare martial law, but their actions are subject to review

The US Constitution does not define martial law and does not specify who can declare it. However, the US president does have the power to deploy the military domestically to perform law enforcement functions. The Insurrection Act and Title 32 leave it to the president to decide when and where to use US armed forces at home against Americans. This deployment of troops might resemble martial law, but the military's authority would be less extensive than under martial law.

Although the US Constitution does not explicitly grant the president the power to declare martial law, some scholars argue that the Constitution's enumerated war powers give both Congress and the president the power to declare martial law. Article II, Section 2, lists the following presidential powers:

> "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

The commander-in-chief clause establishes that the president is in charge of the army, navy, and state militias. However, the Posse Comitatus Act states that it is unlawful for federal military forces to engage in civilian law enforcement activities unless expressly authorized by Congress.

While the president can call on the military to help local governments after a natural disaster, their help is usually limited. When martial law is declared, the government assumes governance of the area, and local laws, civil authority, and sometimes local judiciaries are suspended. In short, it gives the military commander virtually unlimited authority to govern an area.

The Insurrection Act gives the president extensive authority to deploy the military domestically

The Insurrection Act, first enacted in 1792, gives the president extensive authority to deploy the military domestically. The Act allows the president to deploy the military to assist civilian authorities with law enforcement. This may involve soldiers enforcing a federal court order or suppressing an uprising against the government.

The Act has been used to quell significant domestic conflicts, such as addressing racial violence perpetrated by the Ku Klux Klan after the Civil War and enforcing court orders to desegregate schools over the objection of local officials. More recently, governors have requested and received support under the Act following looting in the aftermath of Hurricane Hugo in 1989 and during the 1992 Los Angeles riots.

The Insurrection Act has three sections, each providing different conditions under which the president can deploy the military. Section 251, the most limited path, allows the president to deploy troops if a state's legislature or governor requests federal assistance to suppress an "insurrection" within that state. This provision requires direct involvement from state-level authorities and is limited to "outright 'insurrection,'" making it less susceptible to presidential abuse.

Section 252 grants the president more discretion as it does not require the request of state officials and is broader in scope. This section permits the president to deploy the military if he or she considers that "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States" make it impracticable to enforce the laws of the United States in any state through the ordinary course of judicial proceedings.

Section 253 is the most concerning provision as it is particularly broad and vague. It allows the president to act if he or she deems it "necessary to suppress, in a state, any insurrection, domestic violence, unlawful combination, or conspiracy" that hinders the execution of the laws of that state and of the United States or impedes the course of justice.

The lack of clear standards within the Insurrection Act, combined with the Supreme Court's ruling in Martin v. Mott, has resulted in the president having almost limitless discretion to deploy federal troops in cases of civil unrest. Many experts have called on Congress to revise the text of the Act to provide clearer guidance on when it can be invoked.

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