Martial Law: Biden's Authority?

The question of whether President Biden can declare martial law is a complex one, with no clear answer. While the US President and Congress have the power to impose martial law, the US Constitution does not explicitly grant the President this power, and the Supreme Court has never specifically ruled that the President can declare it. Martial law refers to instances when the military assumes governance of an area, usually in times of war, rebellion, or natural disaster, and it has been imposed over 60 times in US history. While some scholars believe the President has the executive power to declare martial law, others argue that Congressional authorization is needed. The sparse and confusing legal precedent makes it difficult to determine if President Biden can declare martial law.

The US Constitution does not specify who can declare martial law

According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws typically prevent the military from acting within the country. However, the president can call on the military to assist local governments in the event of a natural disaster, although their help is usually limited. When martial law is declared, the government assumes governance of the area, and the military commander has virtually unlimited authority to make and enforce laws.

There are two competing theories regarding the source of the power to declare martial law. The first theory suggests that martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second theory proposes that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law.

On a national level, both 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 their state's borders. The concept of martial law in the United States is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The suspension of habeas corpus is related to the imposition of martial law.

The US President's power to declare martial law

The US Constitution does not define martial law and does not specify who can declare it. It also does not explicitly grant the US President the power to declare martial law. While the Supreme Court has held that states can declare martial law, it has never specifically ruled that the President can. However, according to a modern interpretation, the President can declare "degrees of martial law in specific circumstances".

Some scholars argue that the President has the executive power to declare martial law, while others believe that congressional authorization is required for the President to impose it in a civilian area. This suggests that Congress may be the only governmental branch with the authority to declare martial law, and the President can only act based on its authorization.

Throughout history, martial law has been imposed at least 68 times, mostly in limited, local areas of the United States. It has been declared during war or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, natural disaster, and for other reasons. When martial law is in effect, military commanders assume unlimited authority to govern an area, as local laws, civil authority, and judiciaries are suspended.

While the President can call on the military to assist local governments after a natural disaster, federal laws typically prevent the military from acting within the country. The President also has the authority to deploy troops to support civilian law enforcement, but not to replace civilian authorities with federal troops.

Instances of martial law in US history

In the history of the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. The US Constitution does not define martial law and does not specify who can declare it. However, several presidents and state governors have imposed or approved declarations of martial law.

During the American Revolutionary period, British authorities imposed martial law in several instances to suppress colonial resistance and maintain control. Notable examples include Boston in 1774 and Virginia in 1775. In Boston, the British Parliament passed the Intolerable Acts, one of which effectively placed Boston under martial law by closing its port and restricting town meetings. In Virginia, the royal governor, Lord Dunmore, issued a proclamation declaring martial law and offering freedom to indentured servants and enslaved individuals who joined British forces.

In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, allowing him to suspend habeas corpus and civil rights. In 1871, Chicago mayor Roswell B. Mason declared a state of martial law following the Great Chicago Fire.

Martial law has also been declared in response to riots and civil unrest, such as the Omaha race riot of 1919, the 1920 Lexington riots, and the Cambridge riot of 1963 during the Civil Rights Movement. In addition, it has been imposed after major disasters, such as the 1906 San Francisco earthquake and the Great Chicago Fire of 1871.

In the 1930s, Oklahoma Governor William Murray declared martial law at least six times, and possibly more than 30 times, during his tenure. City mayors and generals within states' National Guard forces have also declared martial law on occasion.

Martial law and the right of habeas corpus

The US Constitution does not define martial law, nor does it specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never explicitly ruled that the president or federal government can. However, modern interpretation allows the president and state officials to declare "degrees of martial law" in specific circumstances.

Martial law refers to instances when a nation's armed forces assume the governance of an area, typically when civilian authority has stopped functioning due to insurrection or natural disaster. When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended, and the commanding officer implements temporary laws and military tribunals, giving them virtually unlimited authority.

The concept of martial law in the United States is closely tied to the right of habeas corpus, which is the right to a hearing and trial for lawful imprisonment, or the supervision of law enforcement by the judiciary. Article 1, Section 9 of the US Constitution protects the right of habeas corpus, stating, "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."

While the imposition of martial law may be accompanied by the suspension of habeas corpus, they are distinct concepts. Suspending habeas corpus allows the government to detain and hold individuals without charge, but it does not imply an unusual role for the armed forces. The suspension of habeas corpus has occurred throughout US history, including during the Whiskey Rebellion and the Civil War, but these instances did not constitute a declaration of martial law.

In summary, while the president may have the power to declare martial law in certain circumstances, it is a dramatic departure from normal practice in the United States. The suspension of habeas corpus, which can accompany martial law, is a separate concept that has been invoked in the past during times of crisis.

State officials' power to declare martial law

The US Constitution does not define martial law and does not specify who can declare it. However, the Supreme Court has held that states can declare martial law, and almost all state constitutions allow the state governor or legislature to impose it. State officials have sometimes declared martial law in response to violent civil unrest, natural disasters, or to break up labour strikes. For example, in 1900, martial law was declared in response to the Akron Riot and the Galveston hurricane. In 1903, at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break up a peaceful strike by the Western Federation of Miners.

The exact scope and limits of martial law remain unclear, and the Supreme Court precedent is too old, sparse, and inconsistent to provide any certainty. However, the Constitution and valid federal laws will still constrain states' conduct under the declaration, and judicial review will be available in federal court.

On a national level, both 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. However, the Constitution does not explicitly grant the president the power to declare martial law, and the Supreme Court has never specifically ruled that the president or federal government can declare it. Some scholars believe the president has the executive power to declare martial law, while others believe the president needs congressional authorization to impose it in a civilian area.

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