Martial Law: Can Outgoing Presidents Declare It?

The US Constitution does not explicitly define or grant the president the power to declare martial law. The Supreme Court has also never specifically ruled on whether the president can declare martial law. While there is no federal law prohibiting the president from declaring martial law, the Posse Comitatus Act makes it unlawful for federal military forces to engage in civilian law enforcement activities. Congress has also enacted a wide variety of laws that regulate when and where the military may be used domestically, and these laws are so comprehensive that any unilateral declaration of martial law by the president would effectively be against Congress's will. Therefore, while there is ambiguity on whether an outgoing president can declare martial law, it is unlikely that they can do so without congressional authorization.

The US President's power to declare martial law

The US Constitution does not explicitly grant the president the power to declare martial law. However, some scholars argue that the president has the executive power to do so, while others believe that congressional authorization is required for the president to impose martial law in a civilian area.

The Posse Comitatus Act, enacted by Congress in 1878, creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without express authorization from Congress. This Act strengthens the separation of powers between Congress and the president and bolsters the concept of federalism, dividing power between the federal and state governments.

The Insurrection Act of 1807 allows the president to deploy military forces to address rebellions and support local law enforcement in dealing with domestic violence. In 2006, the US Senate held hearings about recent changes to the Insurrection Act, with Senator Patrick Leahy seeking to reverse the 2006 amendments that gave the president new powers to use the military for domestic disturbances, terrorism, and insurrection.

The US Constitution's Guarantee Clause requires the federal government to protect states against invasion and domestic violence. However, in cases of domestic violence, the affected state must request assistance before the federal government can act.

The Supreme Court has never specifically ruled that the president or federal government can declare martial law. The Court has ruled that a president's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still operational.

In summary, while the US President may have some degree of power to impose martial law, it is not an explicit authority granted by the Constitution. The power to declare martial law is a complex and ambiguous issue, with scholars and legal interpretations offering differing views.

Congress's power to declare martial law

The Constitution of the United States does not define martial law and does not specify who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances".

Some scholars believe the president has the executive power to declare martial law. Others argue that 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 actions.

Congress has the power to impeach and has several war powers that act as checks on the commander-in-chief. For example, Congress has the legislative power to authorize the use of military force, regulate and call forth the militia, and make rules for the armed forces.

Congress has also enacted laws that impact the president's ability to declare martial law, such as the Posse Comitatus Act, which creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without express authorization by Congress.

While the president is the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual service, the Supreme Court has never explicitly ruled that the president or federal government can declare martial law.

State officials' power to declare martial law

The US Constitution does not define martial law and does not specify who can impose it. However, state officials do have the power to declare martial law. This power is more clearly established than that of the president, but there are still significant limits. States may declare martial law when it is authorized by state law, and federal courts will likely defer to a state governor's decision that doing so was necessary. However, the Constitution and valid federal laws will still constrain the state's conduct under the declaration, and judicial review will be available in federal court.

Throughout US history, state officials have declared martial law in response to violent civil unrest, natural disasters, and to break labour strikes on behalf of business interests. For example, in 1900, state officials declared martial law in response to the Akron Riot and the Galveston hurricane. In September 1903, at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. In 1920, martial law was declared in the state of West Virginia during the West Virginia Coal Wars. More recently, in 2005, the military was deployed to the Gulf Coast in the aftermath of Hurricane Katrina to carry out search-and-rescue missions.

State constitutions allow the state governor or legislature to impose martial law. In nearly every state, the governor has the power to impose martial law within the borders of the state. This power is not unlimited, however, and state officials' actions under the declaration must abide by the US Constitution and are subject to review in federal court.

While the president does not have the explicit authority to declare martial law, they can call on the military to help local governments after natural disasters or to assist civilian law enforcement. The president is the Commander in Chief of the Army, Navy, and Militia of the US and may use the National Guard or active-duty armed forces to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" in a state if the "constituted authorities" of the state are unable or refuse to protect constitutional rights.

The Posse Comitatus Act

While the Posse Comitatus Act limits the use of the military in civilian law enforcement, there are exceptions and loopholes that allow for their deployment under certain circumstances. The Insurrection Act, for example, grants the president broad authority to deploy the military domestically to suppress rebellions, enforce federal civil rights laws, and protect a group of people's civil rights when the state government is unable or unwilling to do so. Another loophole is Section 502(f) of Title 32 of the U.S. Code, which allows the National Guard to carry out federal missions at the request of the president or secretary of defense while remaining under state control, bypassing the Posse Comitatus Act.

The Insurrection Act

The Act does not provide a definition of "insurrection," "rebellion," "domestic violence," or any of the other key terms used in setting forth the prerequisites for deployment. In the 1827 case Martin v. Mott, the Supreme Court ruled that the decision to invoke the Insurrection Act was the president's alone to make. However, in Sterling v. Constantin (1932), the Court clarified that the lawfulness of the military's actions once deployed could be reviewed by the courts.

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