Martial Law: Can Congress Veto Presidential Power?

In the United States, martial law refers to the state in which a region, city, state, or the entire country is placed under the control of a military body. On a national level, both the US President and the US Congress have the power to impose or veto martial law, within certain constraints. While Congress has never declared martial law, it has the authority to end presidential national emergencies if both Houses and the Senate agree by a simple majority.

The US President can declare martial law

On a national level, the US President and the US Congress can impose martial law as both can be in charge of the militia. In fact, in 1861, Congress ratified most of the martial law measures declared by President Abraham Lincoln. Similarly, in 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.

In 2006, the John Warner National Defense Authorization Act was passed, giving the president the power to declare martial law and take command of the National Guard units of each state without the consent of state governors. However, some scholars argue that the president needs congressional authorization to impose martial law in a civilian area, and that Congress may be the only governmental branch that can legally declare martial law.

In nearly every state, the governor has the power to impose martial law within the borders of the state. Martial law has been declared in limited circumstances, such as after major disasters or during riots.

Congress can ratify martial law measures

In United States law, martial law is limited by several court decisions that were made between the American Civil War and World War II. Martial law has been declared at least 68 times, mostly in limited, local areas. The US President and Congress have the power to impose martial law on a national level, and in nearly every state, the governor can impose martial law within their state's borders.

Congress has never declared martial law, but it has the power to do so under Article I, Section 8, Clause 15 of the Constitution, which states that Congress has the authority "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions."

In July 1861, Congress ratified most of the martial law measures declared by President Abraham Lincoln at the outset of the Civil War. This included the suspension of the writ of habeas corpus, which allowed Union forces to arrest and detain Confederate soldiers and sympathizers.

In 1878, Congress passed the Posse Comitatus Act, which prevents the US military from engaging in civilian law enforcement without congressional approval. This Act limits the president's ability to declare martial law and use the military for domestic purposes.

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 martial law in civilian areas. The consensus is that Congress may be the only governmental branch with the legal authority to declare martial law, and the president can only act with Congress's approval.

Additionally, Congress has the power to review and enforce limits on martial law declarations. For example, in the case of Ex parte Milligan, the Supreme Court held that neither the president nor Congress could give federal military forces the authority to try a civilian from a state with federal courts.

Congress can suspend the writ of habeas corpus

In the United States, martial law refers to the placement of a region, state, city, or the entire country under the control of a military body. On a national level, both the US President and the US Congress have the power to impose martial law. However, the power to impose martial law is limited by several court decisions and acts, including the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval.

The writ of habeas corpus is a legal procedure that protects individuals from unlawful detention. It allows an individual to seek relief from arbitrary or unlawful imprisonment by requiring the state to provide a valid reason for their detention. The Suspension Clause, as outlined in Article I, Section 9, Clause 2 of the US Constitution, protects the privilege of the writ of habeas corpus. It states that the right to habeas corpus cannot be suspended unless in cases of rebellion or invasion where public safety is at risk.

While the Suspension Clause does not explicitly specify which branch of the government has the authority to suspend the writ, it is generally agreed that only Congress has the power to do so. This interpretation is supported by court rulings, such as Ex parte Merryman in 1861, which established that only Congress has the authority to suspend the writ. In practice, Congress has authorized the suspension of the writ of habeas corpus on several occasions, including during the Civil War and in specific regions facing insurrection or civil unrest.

The writ of habeas corpus is a fundamental protection against unlawful imprisonment, and its suspension is considered an extraordinary measure. The Suspension Clause and the requirement for congressional authorization act as safeguards to ensure that the writ is not arbitrarily suspended. The Supreme Court has also played a role in interpreting and upholding the right to habeas corpus, as seen in cases like Ex parte Milligan and Boumediene v. Bush, where the Court clarified the scope of the Suspension Clause and affirmed the right of prisoners to challenge their detention.

Congress can end presidential national emergencies

In the United States, martial law refers to instances in history when a region, state, city, or the entire country was placed under the control of a military body. On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law. This is because both can be in charge of the militia.

The NEA has been criticised for lacking protections against executive overreach. For example, President Trump declared a fake emergency to obtain funding for his border wall after being denied the funds by Congress. While a majority of both houses of Congress voted to end this emergency, the president was able to override the veto.

There is bipartisan consensus for reforming emergency powers to restore Congress's role as a check on executive power. The Posse Comitatus Act, passed in 1878, is another example of Congress's role in limiting the use of martial law. The Act forbids US military involvement in domestic law enforcement without congressional approval.

The Supreme Court can review propriety of martial law declarations

The US Constitution does not explicitly grant the president the power to declare martial law. The Supreme Court has also never directly ruled that the president or federal government can declare martial law. However, the Supreme Court has interpreted Article I, Section 8, Clause 15, and Article II, Section 2, Clause 1, of the Constitution to allow the declaration of martial law by the president or Congress.

The Supreme Court has reviewed several cases involving martial law declarations. In Ex parte Merryman (1861), the Court ruled that only Congress had the power to suspend the writ of habeas corpus. In Luther v. Borden (1849), the Supreme Court approved Rhode Island's declaration of martial law, upholding the state's inherent right to declare martial law to defend itself and promote public safety. In Ex parte Milligan, the Supreme Court held that neither the president nor Congress could give federal military forces the power to try a civilian living in a state with federal courts. This established the right of the Supreme Court to review the propriety of martial law declarations.

In addition to the Supreme Court, state supreme courts have also reviewed the propriety of martial law declarations. For example, the Pennsylvania Supreme Court considered the order deploying the National Guard to be a declaration of "qualified martial law" in Shortall. The West Virginia Supreme Court partially invalidated Governor Morgan's declaration of martial law in Lavinder, and the Nebraska Supreme Court reviewed a case involving martial law in Nebraska City, Nebraska, in 1922.

While the Supreme Court has reviewed the propriety of martial law declarations, it is important to note that the Court has never explicitly held that the federal government can impose martial law. The Court has suggested that the federal government may impose it in two different decisions, but neither decision directly stated that the federal government had this power.

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