Congress' Power To End Martial Law

The concept of martial law and its implementation is a complex and contentious issue in the United States, with a long history of debate and legal ambiguity. Martial law refers to the temporary assumption of civilian authority by the military, and while it has been declared over 60 times in US history, it lacks a clear and consistent definition. The US Constitution does not explicitly grant the President the power to declare martial law, and this authority is generally understood to rest with Congress, which can also place restrictions on the President's ability to deploy the military domestically. However, there have been instances where Presidents have imposed martial law, either with or without Congressional authorization, and the exact limits of their powers in this regard remain a subject of legal discussion and interpretation.

The US President's inability to declare martial law

The US Constitution does not explicitly grant the US President the power to declare martial law. While the US President has the power to deploy troops to assist in civilian law enforcement activities, the Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities. The Insurrection Act of 1807 allows the President to deploy military forces to put down rebellions within the US. However, the deployment of troops under the Insurrection Act is not the same as a declaration of martial law.

The US Constitution does not give the President "conclusive and preclusive" authority over the domestic use of the military. Instead, it explicitly vests power in the legislative branch, which is Congress. Therefore, a unilateral declaration of martial law by the President would not survive a legal challenge under Youngstown. The Supreme Court has never specifically ruled that the President or federal government can declare martial law. While the Court has implied that the federal government can declare it, it has never said so conclusively.

The legislative history of Section 253 of the Ku Klux Klan Act of 1871 indicates that Congress meant to authorize the military to take over the role of local police, but not to declare martial law. The House version of the bill included language explicitly authorizing the President to declare martial law, but this language was removed before the bill was sent to the Senate. This demonstrates that Congress was aware of martial law and chose not to authorize it or determined that it lacked the power to do so.

While the President may have some degree of authority to declare martial law, it is limited and subject to legal challenge. The real question is whether there are limits to martial law and, if so, who imposes and enforces those limits. The US Constitution does not define martial law, and its use throughout history has defined its application and limits. Generally, martial law refers to when the military temporarily substitutes its authority for civilian authority, imposing its own rules.

In summary, the US President does not have the unilateral authority to declare martial law. Any attempt to do so would likely face legal challenges and would need to be authorized by Congress. The President's ability to declare martial law is further limited by federal laws that prevent the military from acting within the country and by the need to respect the autonomy of individual states.

Congress's power to restrict the President's military deployment

The US Constitution does not explicitly define martial law, and its interpretation has been largely shaped by historical applications. Martial law generally refers to the temporary assumption of civilian authority by the military, where the army imposes its rules on a civilian area. While the president can use martial law to some degree, the authority to declare it is a contentious issue. Some scholars argue that the president has the executive power to declare martial law, while others believe that congressional authorization is required.

Congress, as established by Article I of the Constitution, comprises the House of Representatives and the Senate, and it holds several war powers that act as checks on the commander-in-chief. Congress has the legislative power to impeach the president, and it has enacted laws that impact the president's ability to declare martial law. For instance, the Posse Comitatus Act of 1878 prevents the US military from engaging in civilian law enforcement activities. Additionally, the War Powers Resolution requires the president to seek prior congressional approval for deploying troops to conflict and stationing them for more than 60 days. The resolution also mandates routine consultations with Congress during the conflict and notification to Congress within 48 hours of committing armed forces to military action.

The Insurrection Act, which predates the Posse Comitatus Act, authorizes the president to use the armed forces in specific circumstances, such as when there is an insurrection in a state or when unlawful obstructions make it challenging to enforce federal law. However, Congress has the authority to "call forth" militias to "execute the Laws of the Union" and "suppress Insurrections," indicating that the Constitution foresees the possibility of domestic military deployments. The Framers intended for these steps to be a last resort and vested the authority over such deployments in Congress to prevent potential abuse.

While the president derives the power to direct the military from Article II, Section 2, of the Constitution, which designates the president as the Commander-in-Chief, their powers are not entirely separate from those of Congress. The War Powers Act, designed to limit the president's power, supplements the war powers delineated in the Constitution. The president can send armed forces into action abroad only with a declaration of war by Congress, "statutory authorization," or in response to a national emergency.

In conclusion, Congress has the power to restrict the president's military deployment through various legislative acts and resolutions, such as the Posse Comitatus Act, the War Powers Resolution, and the War Powers Act. While the president has broad constitutional powers as the Commander-in-Chief, their actions are subject to congressional checks and balances, ensuring that military deployments align with the wishes of Congress and the democratic principles of the nation.

Martial law's historical use in the US

Martial law in the United States refers to instances in history where a region, state, city, or the entire country was placed under the control of a military body. Both the US President and the US Congress have the power to impose martial law, as can state governors in nearly every state.

The historical use of martial law in the US is poorly documented and under-studied, but it has been imposed at least 68 times, usually in limited, local areas. One of the earliest instances of martial law in the US was in New Orleans from December 12, 1814, to March 13, 1815, during the Battle of New Orleans. Another early instance was in Rhode Island, where martial law was in place from September 15, 1857, until June 12, 1858, when the state adopted a new constitution.

During the Civil War, Abraham Lincoln made extensive use of martial law, particularly in border states like Kentucky, Missouri, and Indiana, where local governments were in disarray or couldn't be trusted to enforce Union laws. On September 15, 1863, Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, allowing him to suspend habeas corpus and civil rights. This was challenged in Ex parte Milligan (1866), where the Supreme Court ruled that Lincoln's imposition of martial law was unconstitutional in areas where local courts were still in session.

Martial law was also imposed in New Orleans during the Whiskey Rebellion, and after major disasters, such as the Great Chicago Fire of 1871, the 1906 San Francisco earthquake, and during riots, like the Omaha race riot of 1919 and the Lexington riots of 1920. In 1932, President Herbert Hoover directed the military to clear protesting veterans and their families from an encampment near the US Capitol, an operation involving tanks and soldiers with fixed bayonets.

In more recent times, martial law was imposed in Hawaii by local military officials during World War II, which was later approved and expanded by Franklin D. Roosevelt to include the incarceration of Japanese-Americans on the West Coast. In 1977, martial law was imposed in Pakistan by General Muhammad Zia-ul-Haq, who overthrew the civilian government in a bloodless coup d'état. In 2006, Congress passed a bill that gave the president the power to declare martial law and take command of National Guard units without the consent of state governors, but this was repealed in 2008 due to opposition from Congress, state governors, and law enforcement.

Martial law's legality in the US

The legality of martial law in the United States is a complex and unsettled issue. While it has been imposed at least 68 times in limited, usually local areas, the exact process and authority to declare it are not clearly defined. The Constitution does not explicitly mention "martial law", and its interpretation is based on historical use and Supreme Court rulings.

Some scholars argue that the President has the executive power to declare martial law, especially during wartime when "supreme political authority" is granted. They cite the Constitution's enumerated war powers, which give both Congress and the President control over the military. Additionally, the President has considerable authority to deploy troops domestically, which may appear similar to declaring martial law.

However, others believe that the President lacks the authority to unilaterally declare martial law. They emphasize that the Constitution does not grant the President "conclusive and preclusive" power over the domestic use of the military. Instead, it vests most of the relevant authority in Congress, which has placed restrictions on the President's ability to use the military domestically. The Posse Comitatus Act, passed by Congress in 1878, specifically forbids US military involvement in domestic law enforcement without congressional approval.

While Congress has the power to authorize a presidential declaration of martial law, this has not been conclusively decided. State officials do have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court.

Nationwide martial law in the US would be extremely difficult to implement due to the country's size, population, and economic considerations. Additionally, the military is not large enough to enforce it, and police departments are generally understaffed.

The US Supreme Court's stance on martial law

The US Constitution does not define or explicitly grant the president the power to declare martial law. The US Supreme Court has also never specifically ruled that the president or federal government can declare martial law. However, the Court has suggested that the federal government may impose it in two different decisions, but neither of them explicitly stated that it could. The Supreme Court has held that states can declare martial law, and in 1849, the Court approved the declaration of martial law by Rhode Island's legislature in response to "Dorr's War".

The Supreme Court's stance on martial law is informed by a few significant cases. In 1849, the Court's ruling in Luther v. Borden endorsed the constitutionality of martial law, stating that states had an inherent right to declare it to defend themselves and promote public safety. This case involved a group of Rhode Islanders who were unhappy with the state's constitution due to its restrictions on voting. The Court's decision, however, did not address the federal government's ability to impose martial law.

In 1815, the Louisiana Supreme Court criticised President Jackson's use of martial law in New Orleans as "trampling upon the Constitution and laws of our country." Jackson was fined $1,000 by a judge, but he later asked Congress to pass a bill refunding him the money, which they did in 1844. This symbolic act endorsed Jackson's use of martial law.

Another notable case is Duncan v. Kahanamoku in 1946, where the Supreme Court made clear that it would interpret statutes authorising the military to encroach on civilian government affairs extremely narrowly. Additionally, the Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities, further limiting the president's ability to declare martial law.

While the president has ample authority to deploy troops to assist civilian law enforcement, there are legal ambiguities and sparse precedent surrounding the exact scope of martial law. The Supreme Court's statements on the matter have been inconsistent, and it has never conclusively decided whether Congress must first authorise a presidential declaration of martial law.

Frequently asked questions