Martial Law: Can A President Be Imposed?

The concept of martial law in the United States has been shrouded in ambiguity, with the Constitution and federal law neither defining it nor explicitly authorizing the president to declare it. While the Supreme Court has never explicitly ruled that the president can declare martial law, several presidents and state governors have imposed or approved it throughout history. The power to declare martial law may stem from the government's duty to maintain public order and keep the peace, with some scholars arguing that Congress or the president, as Commander-in-Chief, can authorize its declaration. The Insurrection Act of 1807 further empowers the president to deploy the military to suppress rebellions and enforce federal laws. However, the Posse Comitatus Act of 1878 prohibits the military from engaging in civilian law enforcement without congressional approval. These complexities and the potential for abuse as a political tool raise questions about the possibility of electing a president during a period of martial law.

Who can declare martial law?

The US Constitution does not explicitly define when a president can declare martial law, nor does it specifically forbid it. On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law. However, the US President cannot act against Congress's wishes in this area. Congress enacted the Posse Comitatus Act in 1878, which prevents the US military from participating in civilian law enforcement activities.

Nearly every state has a constitutional provision authorizing the government to impose martial law, and in nearly every state, the governor has the power to impose martial law within the borders of the state. The governor of Idaho, for example, declared martial law in 1892 in Coeur d'Alene in response to striking mineworkers who blew up a mill and shot at strike-breaking workers.

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. President Dwight D. Eisenhower invoked the Insurrection Act to enforce desegregation in Arkansas in 1957, but martial law was not declared.

What is martial law?

Martial law is a complicated and unsettled legal concept that has no single, established definition. In general, it refers to the power that allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area during a time of emergency or necessity. While the term "martial law" is often used to describe a wide variety of actions, practices, or roles for the military, it is typically associated with the suspension of ordinary power and the implementation of military rule.

The declaration of martial law has occurred numerous times throughout history, with over 60 instances in the US alone, mostly declared by state and local officials. For example, martial law was declared during the 2020 Nagorno-Karabakh war by the Azerbaijani president, and in 2011 by King Hamad bin Isa Al Khalifa during an anti-government uprising. In the US, martial law was pronounced by President Abraham Lincoln in 1863, suspending the writ of habeas corpus.

The authority to declare martial law varies across different countries and legal systems. While some countries have explicit provisions permitting the use of martial law, many do not. In the US, for instance, there is no federal statute that defines or authorizes the president to declare martial law. The Supreme Court has not provided a clear ruling on whether the federal government or the president has the unilateral power to declare it. However, the court's ruling in Youngstown Sheet & Tube Company v. Sawyer in 1952 provides a framework for analyzing executive power and its limits.

The implementation of martial law often arises from necessity rather than legal right, and in countries without explicit constitutional permission, the common law doctrine of necessity is often used as a justification. While the exact scope and limits of martial law are often ambiguous, it is important to note that even under martial law, the government is still bound by the Constitution and cannot suspend or violate constitutional rights. Martial law declarations are subject to judicial review, and courts can determine whether the declaration was constitutional.

Can a president impose martial law?

There has been much discussion and speculation about whether a president can impose martial law, especially in light of the recent riots at the U.S. Capitol and subsequent claims on social media.

The consensus among constitutional scholars is that the president does not have the authority to unilaterally impose martial law to deal with civil unrest after an election. This is because neither the U.S. Constitution nor Congress has granted the president this power. If a president were to attempt this, it would likely be blocked by Congress and the U.S. Supreme Court.

It is important to note that while the president does not have the power to impose martial law, they do have the authority to deploy the National Guard to assist local authorities during times of disaster and unrest. This is distinct from martial law, which would involve the military taking full control and replacing local courts with military tribunals.

Claims that President Trump or any other president has the legal authority to impose martial law are false. These claims have been debunked by constitutional scholars and non-partisan fact-checking services.

In summary, while the president has extensive authority to deploy the military domestically, they cannot unilaterally impose martial law without the authorization of Congress and the U.S. Supreme Court.

What happens when martial law is imposed?

The concept of "martial law" has no established definition, but it generally refers to the temporary substitution of military authority for civilian authority. In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. When martial law is imposed, the military commander is given virtually unlimited authority to govern the area. This includes the power to suspend local laws, civil authority, and sometimes local judiciaries, replacing them with temporary military laws and tribunals.

Historically, martial law has been imposed in the US for various reasons, including war or invasion, domestic war or insurrection, riot or civil unrest, labor disputes, and natural disasters. For example, in 1814, General Andrew Jackson, who later became President, declared martial law in New Orleans to defend against a British invasion. In 1863, President Lincoln imposed Congressionally-authorized martial law on Kentucky, Maryland, and Missouri during the Civil War. In 1906, federal troops were pressed into martial law service in the aftermath of the San Francisco earthquake. More recently, in 1970, President Richard Nixon imposed martial law in the United States for a brief period in response to protests and civil unrest.

The power to impose martial law in the US rests with both the President and Congress, as well as state governors. The President, as Commander-in-Chief, has the power to call on the military to help local governments after a natural disaster or in cases of domestic violence or rebellion. However, the Posse Comitatus Act of 1878 forbids the US military from participating in civilian law enforcement activities without congressional approval. The Insurrection Act of 1807 allows the President to deploy the military to put down rebellions and assist local law enforcement. While the President can take certain actions related to martial law, Congress may be the only governmental branch that can legally declare it.

The imposition of martial law has been limited by several court decisions and acts of Congress. For example, the Supreme Court ruled in Ex parte Milligan (1866) that Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session. The Posse Comitatus Act and the Insurrection Act also restrict the President's ability to involve the military in civilian law enforcement without congressional approval.

Has martial law been imposed in the past?

In the United States, martial law has been imposed in the past on a national level and in limited, usually local areas. The US President, US Congress, state governors, city mayors, and generals within states' National Guard forces can impose martial law within certain constraints. The term "martial law" refers to the military taking the place of civilian authorities, but the Supreme Court has held that simply putting the words "martial law" in a statute is not sufficient to authorize such measures.

Martial law has been imposed at least 68 times in US history, with some sources stating that the number could be higher as the historical use of martial law in the country is poorly documented and under-studied. Some notable instances of martial law being imposed in the past include:

• New York (1776) – Following the British capture of New York City, martial law was imposed to restore order and assert British authority.
• New Orleans (1814) – During the War of 1814, General Andrew Jackson imposed martial law in New Orleans due to concerns about potential disloyalty and panic among residents.
• Kentucky, Maryland, and Missouri (1863) – President Abraham Lincoln imposed Congressionally authorized martial law in these states during the Civil War, allowing him to suspend habeas corpus and civil rights.
• Chicago (1871) – Following the Great Chicago Fire, Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city.
• San Francisco (1906) – After the 1906 earthquake, federal troops were pressed into martial law service, confiscating dynamite and destroying buildings to prevent fires from spreading.
• Colorado (1914) – During the Colorado Coalfield War, the governor proclaimed martial law, which eventually resulted in the Ludlow Massacre.
• Oklahoma (1930s) – Oklahoma Governor William Murray declared martial law at least six and perhaps more than 30 times during his tenure.
• Maryland (1963) – Maryland Governor J. Millard Tawes imposed martial law on the city of Cambridge for over a year in response to clashes between racial justice advocates and segregationists.

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