Martial Law In America: Is It Possible?

The United States Constitution and founding documents do not mention martial law, and Congress has not passed a law specifying when it can be declared. However, the US President and Congress have the power to impose martial law, and in nearly every state, the governor can impose it within state borders. Martial law has been declared at least 60 times in US history, and it involves the military taking control of civil governance and law enforcement. During this time, civil liberties and constitutional rights are suspended, and military leaders can detain people and take over local governments.

Who can declare martial law in America?

In the United States, martial law has been declared over 60 times, with some sources placing the number at 68. Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster.

On a national level, the US President and the US Congress have the power to impose martial law, as they can be in charge of the militia. However, the US Constitution does not define martial law and does not specify who can impose it. Some scholars argue that the President has the executive power to declare it, while others believe that the President needs congressional authorization to do so. In nearly every state, the governor has the power to impose martial law within the state's borders.

Some examples of martial law being declared include:

• Virginia in 1775, when Lord Dunmore, the royal governor of Virginia, declared martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.
• New York in 1776, when the British captured the city and imposed martial law to restore order and assert authority.
• New Orleans during the War of 1812, when General Andrew Jackson imposed martial law.
• Colorado in the early 20th century, when Governor James Peabody declared martial law during a labor dispute between mine workers and their employers.
• Hawaii during World War II after the attack on Pearl Harbor, which led to the internment of Japanese Americans and their continued control even after martial law was lifted in 1944.

Martial law in American history

The concept of martial law in the United States involves the temporary transfer of authority from civilian rule to military control. This transfer of power is usually invoked during times of war, rebellion, or natural disaster. In the history of the United States, martial law has been imposed at least 68 times, mostly in limited, local areas.

During the American Revolutionary period, the British imposed martial law in several instances to suppress colonial resistance and maintain control. For example, in 1774, in response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, which placed Boston under martial law by closing its port and restricting town meetings. In 1775, the royal governor of Virginia, Lord Dunmore, declared martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.

In the early 19th century, martial law was imposed in New Orleans during the War of 1812 by General Andrew Jackson, who encountered a divided populace upon his arrival in the city. He imposed strict curfews and travel restrictions, leading to mass arrests and overcrowded jails. Jackson also clashed with the press, warning newspapers not to publish information about the Treaty of Ghent without his approval.

In the latter half of the 19th century and early 20th century, martial law was declared in various states for different reasons. For instance, in 1871, martial law was in force in Illinois during the Illinois Mormon War, and in 1866, it was briefly declared in New Orleans, Louisiana, by General Absalom Baird, with the ratification of President Andrew Johnson. In 1901, it was imposed in Jacksonville, Florida, for 14 days, and in 1913, in Dayton, Ohio, for a month.

In summary, the history of martial law in the United States is complex and multifaceted, with numerous instances of its imposition across different states and time periods.

The Insurrection Act

The Act grants the president the authority to deploy the military domestically and use it against Americans, but only under specific conditions. These conditions include suppressing rebellion or domestic violence, or enforcing the law in certain situations. The Act should, in theory, only be used in a crisis that is beyond the capacity of civilian authorities to manage. However, the Act has been criticised for failing to adequately define or limit when it may be used, giving the president significant power to decide when and where to deploy the military within the US.

Martial law and habeas corpus

The concept of martial law in the United States is closely associated with the right of habeas corpus. Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked during times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has absolute authority to make and enforce laws, superseding civil authority and the ordinary administration of justice.

Habeas corpus, on the other hand, is the right of any person under arrest to appear before a court to ensure they are not being falsely imprisoned. It is a fundamental right protected by the US Constitution, which states in Article 1, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The US Constitution does not explicitly address martial law or specify who has the authority to impose it. However, it has been interpreted to grant the President and state officials the power to declare "degrees of martial law" in specific circumstances. While the President has the executive power to declare martial law, some scholars argue that congressional authorization is required for its imposition in civilian areas.

The suspension of habeas corpus is often associated with the declaration of martial law. For example, during the Civil War, President Abraham Lincoln suspended habeas corpus in Maryland in 1861 to try civilian rioters in military courts and prevent the movement of Confederate troops. In 1863, he issued Proclamation 113, declaring martial law and suspending habeas corpus in Kentucky.

Individuals detained by the military under martial law can petition for a writ of habeas corpus, challenging their detention and seeking release. This right to petition for habeas corpus remains protected even under martial law, as the Supreme Court has established that declarations of martial law are subject to judicial review.

The military as a domestic police force

The use of the military as a domestic police force is a significant departure from American tradition and carries inherent risks. The Posse Comitatus Act, enacted in 1878, prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws. The act allows military personnel to only assist civilian police in enforcing existing laws, while the federal government ensures federal rights are provided and enforced nationwide.

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 with domestic violence and specific law enforcement situations. The Insurrection Act, along with Title 32, gives the president considerable authority to use troops domestically in ways short of martial law. However, the Posse Comitatus Act limits the use of federal forces in these circumstances, and federal troops can only perform the duties of a deputized posse to assist civilian police in enforcing existing laws.

The use of the military as a domestic police force has occurred in several instances in American history. For example, in 1942, military police in Honolulu, Hawaii, arrested a civilian stockbroker for embezzlement of funds, which would typically be a violation of civilian law. During the West Virginia Mine War, federal troops were called three times to quell unrest among miners. In 1934, Minnesota Governor Floyd B. Olson declared martial law and mobilized National Guardsmen in response to escalating violence during the Minneapolis general strike.

The Supreme Court has never explicitly stated whether the federal government or the president has the power to declare martial law. However, the Posse Comitatus Act and the Insurrection Act provide a framework for analyzing the use of the military in domestic law enforcement. While the president has extensive authority to deploy the military domestically, a unilateral declaration of martial law would likely face legal challenges and violate congressional restrictions.

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