Martial Law: Can Us Presidents Wield This Power?

The question of whether a US president can invoke martial law is a complex one, with legal, historical, and political dimensions. Martial law refers to the temporary assumption of civilian governance and law enforcement by military authorities, and it has been invoked in the US at various levels, from local to national. While the US Constitution does not explicitly grant the president the power to declare martial law, several presidents have done so throughout history, often during times of war, insurrection, or natural disasters. However, the legality of such actions is uncertain, and the Supreme Court has never conclusively ruled on the matter, leading to ongoing debates about the limits of presidential power in this area.

The US Constitution and martial law

The US Constitution does not explicitly grant the US President the power to declare martial law. The US Constitution also does not define martial law. Instead, its use throughout history has defined its application and limits. Generally, martial law refers to when the military temporarily substitutes its authority in place of civilian authority.

The US Constitution does not give the President "conclusive and preclusive" authority over the domestic use of the military. Instead, it explicitly vests power in the legislative branch. Therefore, the President cannot act against Congress's wishes in this area. A unilateral declaration of martial law by the President would not survive a legal challenge under Youngstown.

However, the US Constitution's enumerated war powers of the legislative and executive branches give both Congress and the President the power to declare martial law. The Supreme Court has never explicitly ruled that the President or federal government can declare martial law. However, the Court has implied that the federal government can declare it but has never said so conclusively.

The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities without congressional approval. 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.

The US President's powers

The US Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when martial law can be declared. The US President does not have the power to declare martial law for the entire country. However, the US President and the US Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state.

The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. It prevents the US military from participating in civilian law enforcement activities and strengthens the separation of powers between Congress and the President. The Insurrection Act of 1807 allows the President to deploy military forces to put down rebellions within the US and deploy the military to help local law enforcement deal with domestic violence. The 2006 amendments to the Insurrection Act gave the US President new powers to use the military for domestic disturbance, terrorism, insurrection, etc.

The US President is the Commander-in-Chief of the Army, Navy, and Militia of the several States, and has the power to grant reprieves and pardons for offences against the US, except in cases of impeachment. The President may deploy the National Guard or the regular armed forces to suppress an insurrection in a state if the state's legislature or governor requests federal aid. The President may also deploy troops without a request from the affected state to enforce the laws of the US or to suppress rebellion.

The ability to suspend habeas corpus is related to the imposition of martial law. The suspension of habeas corpus and civil rights is a temporary measure that gives the military commander virtually unlimited authority to govern an area. Martial law is intended to be reserved for times of extreme emergencies when existing civilian government and law enforcement have ceased to function or become ineffective.

The role of Congress

Congress has enacted laws that impact the President's ability to declare martial law. The Posse Comitatus Act of 1878 forbids the US military from engaging in civilian law enforcement activities without congressional approval. This Act strengthens the separation of powers between Congress and the President. Additionally, the Insurrection Act of 1807 allows the President to deploy military forces to address rebellions and assist local law enforcement, but it does not authorize the declaration of martial law.

The Supreme Court has also weighed in on the issue, suggesting that federal martial law power may be "implied in sovereignty" or justified by "necessity." However, the Court has never explicitly ruled that the President has the unilateral authority to declare martial law. In the case of Ex parte Milligan (1866), the Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still functioning.

Some scholars argue that Congress may be the only governmental branch that can legally declare martial law, with the President requiring congressional authorization to impose it in civilian areas. This interpretation emphasizes the role of Congress in maintaining a check on the executive branch's power.

In recent years, there have been efforts in Congress to amend the Insurrection Act. In 2006, the Defense Authorization Act expanded the President's powers to use the military for domestic disturbances, terrorism, and insurrection. However, these amendments were later opposed by some members of Congress, who sought to restore the previous limitations on the President's authority.

Supreme Court rulings

The US Constitution does not explicitly grant the president the power to declare martial law. The Supreme Court has never specifically ruled that the president or federal government can declare martial law. However, the Court has implied that the federal government can declare martial law, but it has never said so conclusively. The Court has also never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it.

The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities without congressional approval. This law strengthens the separation of powers between Congress and the president. The Insurrection Act of 1807 allows the president to deploy military forces to put down rebellions within the United States and assist local law enforcement in dealing with domestic violence.

In the 19th century, the Supreme Court suggested in dicta that a federal martial law power was "implied in sovereignty" or justified by "necessity". In Luther v. Borden (1849), the Court held that state declarations of martial law were conclusive and therefore not subject to judicial review. The decision in Martin v. Mott (1827) stated that when the president exercises an authority confided to him by law, the presumption is that it is exercised in pursuance of the law.

In Ex parte Milligan (1866), the Supreme Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session. The Court pronounced that if courts are closed due to foreign invasion or civil war, and criminal justice cannot be administered according to law, then martial rule is permitted until the laws can be enforced again. However, if martial law is continued after the courts are reinstated, it is a gross usurpation of power.

In Allen v. Oklahoma City (1935), the martial law decree was found to provide no justification for the enactment of a segregation ordinance. In Hearon v. Calus (1935), the court found no evidence of a state of war or disorder to justify the governor's takeover of the state highway commission. In Joyner v. Browning (1939), the governor was enjoined from employing martial law to disenfranchise voters based on sex and race.

Historical examples

New Orleans, Louisiana, 1814-1815

Gen. Andrew Jackson declared martial law during the Battle of New Orleans in the War of 1812.

Utah Territory, 1857-1858

Gov. Brigham Young declared martial law to facilitate armed resistance to approaching federal troops.

Oklahoma Oil Fields, 1932

Gov. William “Alfalfa Bill” Murray declared martial law during a nonviolent dispute between the state government and oil producers over oil production limits.

Vigo County, Indiana, 1935-1936

Gov. Paul V. McNutt declared martial law during the General Strike of 1935 (Terre Haute).

Newton, Iowa, 1938

Gov. Nelson Kraschel declared martial law during a labour dispute at the Maytag Corporation.

Kentucky, Maryland, and Missouri, 1863

President Lincoln imposed Congressionally authorized martial law on these three states, allowing him to suspend habeas corpus and civil rights throughout the entire United States.

Chicago, Illinois, 1871

Chicago Mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city in response to the Great Chicago Fire.

San Francisco, California, 1906

Federal troops were pressed into martial law service following the 1906 earthquake.

Ludlow, Colorado, 1913-1914

The governor declared martial law during the Colorado Coalfield War, resulting in the Ludlow Massacre. President Wilson sent in federal troops to end the violence.

Omaha, Nebraska, 1919

Local leaders declared martial law to protect themselves from mob violence during the Omaha race riot.

Lexington, Kentucky, 1920

Martial law was declared during the Lexington riots.

Hawaii, 1941

Martial law was instituted in Hawaii following the Japanese attack on Pearl Harbor.

Cambridge, Maryland, 1963

Martial law was declared during the Cambridge riot during the Civil Rights Movement.

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