Martial Law: Can Congress Override Obama's Executive Order?

The question of whether Congress can override Obama's martial law is a complex one. While some scholars believe that 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. Congress has several war powers that act as checks on the commander-in-chief, and the Posse Comitatus Act of 1878 prevents the United States military from participating in civilian law enforcement activities.

Congress might be able to authorise a presidential declaration of martial law

Some scholars believe that the president has the executive power to declare martial law. Others believe that the president needs congressional authorisation 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.

Articles I and II of the Constitution give each branch some control over America's military forces. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law.

Congress enacted the Posse Comitatus Act in 1878, which prevents the United States military "from participating in civilian law enforcement activities."

The Posse Comitatus Act prevents the US military from participating in civilian law enforcement

The Constitution does not define martial law, but its use throughout history has defined its application and limits. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. (Luther v. Borden (1849)). Scholars also argue 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. Articles I and II of the Constitution give each branch some control over America's military forces.

Congress has several checks on the executive branch, including the impeachment power. Congress also has the legislative power to declare war. While the president can use this power to some degree, states have more often declared martial law. It is unclear whether Congress can authorize a presidential declaration of martial law, but state officials do have the power to declare martial law, and their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

The president has used martial law throughout history

Congress has the power to impeach the president, and it also has several war powers that act as checks on the commander-in-chief. Congress has the legislative power to prevent the United States military "from participating in civilian law enforcement activities". This was enacted in 1878 following Reconstruction and is known as the Posse Comitatus Act.

During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. Scholars argue 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. Articles I and II of the Constitution give each branch some control over America's military forces.

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 officials can declare martial law

There is some debate over whether the president has the power to declare martial law. Some scholars believe the president has the executive power to do so, while others believe the president needs congressional authorization to impose martial law in a civilian area.

Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. However, it is clear that 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.

The Posse Comitatus Act, enacted by Congress in 1878, prevents the United States military from participating in civilian law enforcement activities. This act is one of the federal laws that impacts the president's ability to declare martial law.

During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. Scholars also argue 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. Articles I and II of the Constitution give each branch some control over America's military forces.

The Constitution does not define martial law

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. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. 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.

Congress has several checks on the executive branch, including the impeachment power. Congress also has the legislative power to prevent the United States military "from participating in civilian law enforcement activities." Articles I and II of the Constitution give each branch some control over America's military forces.

Frequently asked questions