Martial Law: Can States Declare Themselves?

Martial law is a complex and unsettled concept that involves the temporary substitution of military authority for civilian rule. While there is no universal definition, it generally refers to the use of the military for law enforcement and has been declared over 60 times in U.S. history, mostly by state and local officials. The U.S. President does not have the explicit authority to declare martial law, but state governors or legislatures typically do, and it can be imposed in specific states or local areas within a state. This raises important questions about the legal basis for martial law, its scope, and the limits of its use.

Who can declare martial law?

The ability to declare martial law in the United States is a complex and ambiguous issue. The US Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has only addressed it on a handful of occasions, and its reasoning in these decisions is inconsistent and vague.

Martial law has been declared more than 60 times in US history, mostly by state and local officials. Nearly every state has a constitutional provision authorizing the government to impose martial law. State officials are bound by the US Constitution and valid federal laws, even when declaring martial law. The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if it is authorized by the constitution or laws of the state.

On a national level, the US President and Congress have the power, within certain constraints, to impose martial law, as both can be in charge of the militia. However, the Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress. A presidential declaration of martial law would violate these rules. The President's proclamation of martial law has been deemed unconstitutional by the Supreme Court in the past.

The power to declare martial law exists in case law and the record books, but it remains poorly understood. The exact scope and limits of martial law are unclear, and Congress and state legislatures must enact new laws to better define them.

What happens when martial law is in effect?

Martial law is a complicated and unsettled concept with no established definition. It has been declared more than 60 times in US history, mostly by state and local officials. When in effect, martial law involves the temporary substitution of military authority for civilian rule. This means that the normal American law enforcement and legal system are replaced by a stricter set of laws and punishments that are completely controlled by the military or executive branch of the government. The normal checks and balances built into the Constitution are suspended, and the military commander's authority is virtually unlimited. However, even under martial law, the government cannot suspend or violate constitutional rights, and martial law declarations are subject to judicial review.

The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities associated with martial law unless Congress has provided express authorization. Congress has placed clear and wide-ranging restrictions on the president's ability to use the military domestically, and a presidential declaration of martial law would violate these rules. The Insurrection Act and potentially Title 32 allow the president to deploy the military to assist civilian authorities with law enforcement activities without it being considered martial law.

Martial law is typically invoked in times of war, rebellion, or natural disaster, and it can be enacted in stages, without ever reaching a total military takeover. While there is no universal definition, it often refers to the use of the military for law enforcement, with military personnel dramatically assisting or replacing a nation's normal legal system in times of emergency.

What is the history of martial law in the US?

The history of martial law in the United States is a complex and unsettled topic. The term "martial law" generally refers to the displacement of civilian authorities by the military, and it has been declared at least 68 times in the US, mostly by state and local officials. The Supreme Court has addressed the concept on only a few occasions, and its reasoning is inconsistent and vague. The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval.

In the 19th century, the Supreme Court suggested that a federal martial law power was "implied in sovereignty" or justified by "necessity." In 1857, the state of Utah was placed under martial law by Governor Brigham Young to facilitate armed resistance to approaching federal troops. The hostilities ended in 1858 when Young accepted a pardon from President James Buchanan and was removed from power.

During the Civil War, President Lincoln imposed Congressionally-authorized martial law on Kentucky, Maryland, and Missouri in 1863, suspending habeas corpus and civil rights. The Supreme Court later ruled that Lincoln's imposition of martial law was unconstitutional in areas where local courts were still in session. In 1871, Chicago Mayor Roswell B. Mason declared martial law after the Great Chicago Fire, placing General Philip Sheridan in charge of the city.

Martial law was also declared in various states in the early 20th century, such as during the Colorado Coalfield War in 1914, the Omaha race riot of 1919, and the 1920 Lexington riots. In the 1930s, Oklahoma Governor William Murray declared martial law numerous times, including during a nonviolent dispute over oil production limits in 1932. In 1933, Georgia Governor Eugene Talmadge declared martial law at the state Highway Board headquarters during a labor dispute.

While the president lacks the authority to declare martial law unilaterally, both the US President and Congress have the power to impose it within certain constraints. The Supreme Court has upheld that individual states have the power to declare martial law if authorized by their state constitution or laws.

Can martial law be challenged?

The concept of martial law has never been well understood in the United States. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court's reasoning in the few cases it has addressed is inconsistent and vague.

Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and standard civil liberties may be suspended.

In the United States, the president lacks the authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials, on the other hand, do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

Martial law declarations are subject to judicial review. For example, individuals detained by the military can ask a federal court to order their release by petitioning for a writ of habeas corpus. Subsequently, if a court considers the petition, it can decide whether the declaration of martial law was constitutional in the first place.

In the United States, martial law has been declared more than 60 times, mostly by state and local officials. Some examples include:

• New Orleans during the Battle of New Orleans in 1812
• Chicago after the Great Fire of 1871
• San Francisco after the earthquake of 1906
• Hawaii after the Japanese attack on Pearl Harbor in 1941
• Montgomery, Alabama, following mob actions against peaceful civil rights activists in 1961

What is the legal basis for martial law?

The legal basis for martial law in the United States is a complex and unsettled issue. While martial law has been declared more than 60 times in US history, the term itself lacks a clear definition.

Martial law generally refers to the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster, when civilian authority has ceased to function or become ineffective. When martial law is in effect, the military commander of an area assumes unlimited authority to make and enforce laws, and existing laws, civil authority, and the ordinary administration of justice are suspended.

The US Constitution does not mention martial law, and no federal statute or act of Congress defines it. The Supreme Court has only addressed the issue on a handful of occasions, and its reasoning in these decisions is inconsistent and vague. While the Court has implied that the federal government can declare martial law, it has never explicitly stated this, nor has it clarified whether the president could unilaterally declare it or if it would require congressional authorization.

The Posse Comitatus Act, passed by Congress in 1878, makes it illegal for federal military forces to engage in civilian law enforcement activities without congressional approval. This Act places clear restrictions on the president's ability to use the military domestically, and a unilateral presidential declaration of martial law would violate these rules.

The right to habeas corpus, or the right to a hearing and trial on lawful imprisonment, is also closely tied to the imposition of martial law. Article 1, Section 9 of the US Constitution states that the right to habeas corpus cannot be suspended unless in cases of rebellion or invasion where public safety is at risk.

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