Martial Law: Can Vice Presidents Take This Step?

The question of whether a vice president can declare martial law is a complex one. While the vice president of the United States is also the president of the Senate, they do not have the same powers as the president when it comes to declaring martial law. The Constitution does not explicitly grant the president the power to declare martial law, and the same can be said for the vice president. However, throughout history, several presidents have declared martial law, and it is believed that the vice president, as the second-highest-ranking official, may also have the authority to do so in certain circumstances.

The US President and martial law

The US Constitution does not define martial law or specify who can declare it. However, the US President does not have the authority to declare martial law. The Constitution does not grant the president "conclusive and preclusive" power over the issue of domestic military deployment. Instead, it gives most of the relevant authority to Congress.

The Supreme Court has never explicitly stated whether the federal government can declare martial law, and if the president could do so independently or with congressional authorization. However, the Court has ruled that states can declare martial law. Several presidents throughout history have declared martial law, including President Lincoln, who imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.

According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice" in the US, as federal laws typically prevent the military from acting within the country. When martial law is declared, the government assumes governance of the area, and the commanding officer substitutes temporary laws and military tribunals, giving the military commander virtually unlimited authority.

While the US Constitution does not explicitly grant the president the power to declare martial law, some scholars believe the president has the executive power to do so. Others argue that congressional authorization is required for the president to impose martial law in a civilian area. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress.

In conclusion, while the US President does not have the sole authority to declare martial law, they may do so with congressional authorization.

Congress and martial law

The US Constitution does not define martial law and does not specify who can declare it. 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.

Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. Some scholars believe the president has the executive power to declare martial law. Others believe the president needs congressional authorization to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its action.

In 1844, Congress enacted a refund bill, symbolically endorsing Jackson's three-month-long imposition of martial law in New Orleans almost 30 years after it had ended. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.

On the other hand, some sources suggest that the president lacks the authority to declare martial law. The Supreme Court has never explicitly held that the president can declare martial law. The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively.

The Insurrection Act of 1807 allows the President to employ the militia to suppress an insurrection or enforce the laws. However, this is not the same as declaring martial law.

State officials and martial law

The United States Constitution does not define martial law and does not specify who can declare it. However, it has been interpreted in modern times to allow the president and state officials to declare "degrees of martial law in specific circumstances".

State officials 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. State governors have imposed or approved declarations of martial law throughout American history. For example, in 1933, Georgia Governor Eugene Talmadge declared martial law to force out some of the state Highway Board's commissioners, whom he had no legal power to remove.

In nearly every state, the governor has the power to impose martial law within the borders of the state. For instance, during the Illinois Mormon War, Smith declared martial law in Nauvoo and called out the Nauvoo Legion, an organized city militia of about 5,000 men, to protect Nauvoo from outside violence. In 1845, Nauvoo was stripped of its charter for abuse of authority, which led to the Illinois Mormon War.

In 1857, tension between the Utah territory and the federal government was strained due to the influence of theodemocracy in Governor Brigham Young's semi-theocratic government, Utah's rejection of federal appointees, and Utah's acceptance of polygamy. Brigham Young was eventually removed as governor and replaced by Alfred Cumming. In 1861, secessionists severed railroad links around Baltimore to prevent the passage of federal troops southward.

In the United States, martial law has been used in a limited number of circumstances, such as in New Orleans during the Battle of New Orleans, after major disasters like the Great Chicago Fire of 1871, or during riots such as the Omaha race riot of 1919. Local leaders declared martial law to protect themselves from mob violence.

The Insurrection Act

The Act did not provide a criminal penalty for insurrection, which was introduced by the Confiscation Act of 1862. The Insurrection Act has been modified twice: in 1861 and 1871. The 1861 modification added a new section allowing the federal government to use the National Guard and armed forces against the will of the state government in the case of "rebellion against the authority of the government of the United States." The 1871 modification revised the Act to protect Black Americans from attacks by the Ku Klux Klan.

The Supreme Court and martial law

The US Constitution does not define martial law, nor does it specify who can declare it. The Supreme Court has never explicitly stated that the president can declare martial law, and legal scholars disagree on whether the president has the authority to do so. The Supreme Court has, however, held that individual states have the power to declare martial law.

The Supreme Court's ruling in Luther v. Borden (1849) endorsed the constitutionality of martial law and implied that the federal government can declare it, but did not say so conclusively. In this case, the Court suggested that martial law was "implied in sovereignty" or justified by "necessity." During the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. Lincoln suspended habeas corpus and civil rights throughout the United States and allowed the military to arbitrarily arrest and confine people. The Supreme Court ruled in Ex parte Milligan (1866) that Lincoln's imposition of martial law was unconstitutional in areas where local courts were still operational.

The Supreme Court has also approved the declaration of martial law by states. In Luther v. Borden (1849), the Court held that states had an inherent right to declare martial law to defend themselves and promote public safety. In 1845, for example, the city of Nauvoo, Illinois, declared martial law to protect itself from outside violence. In 1878, Congress passed the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power and would likely be used to determine whether a president's declaration of martial law is constitutional. According to Youngstown, when Congress has passed a statute on an issue, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue. While the president can call on the military to help local governments after a natural disaster, federal laws usually prevent the military from acting within the country.

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