Martial Law: Can Trump Make The Call?

There is no explicit grant of power to the president to declare martial law in the US Constitution. However, some scholars argue that the Constitution's enumerated war powers give both Congress and the president the authority to declare martial law. The Insurrection Act also gives the president extensive authority to deploy the military domestically to perform law enforcement functions, which may look and feel like martial law. In 2020, Donald Trump's administration considered using martial law to keep him in office following his loss in the 2020 election. Trump himself has stated that one of his biggest mistakes in 2020 was not declaring martial law.

The US Constitution does not grant the president the power to declare martial law

The Posse Comitatus Act, passed in 1878, further prevents the US military from engaging in civilian law enforcement activities, strengthening the separation of powers between Congress and the president. While the president can call on the military to help local governments after natural disasters, their help is usually limited.

Some scholars argue that the Constitution's enumerated war powers give both Congress and the president the power to declare martial law. Articles I and II of the Constitution grant each branch some control over America's military forces. However, the Supreme Court has never explicitly ruled that the president or federal government can declare martial law.

The Insurrection Act of 1807 allows the president to deploy the military to suppress rebellions and assist local law enforcement. In 2006, President George W. Bush signed the John Warner National Defense Authorization Act, which gave the president the power to declare martial law and command National Guard units without the consent of state governors. However, this expansion of executive power was controversial, and attempts were made in the Senate to reverse these amendments.

In conclusion, while the president has some authority to use the military domestically, the US Constitution does not grant them the explicit power to unilaterally declare martial law. Any such declaration would likely face legal challenges and require congressional authorization.

The president can deploy the military domestically to perform law enforcement functions

While the Constitution does not explicitly grant the president the power to declare martial law, the president can deploy the military domestically for law enforcement functions under certain conditions.

The Insurrection Act, enacted in 1792, grants the president the authority to deploy the military domestically to enforce the law, suppress rebellion or domestic violence, or protect constitutional rights. The Act allows the president to use the military to "suppress any insurrection, domestic violence, unlawful combination, or conspiracy" that hinders the execution of laws and deprives citizens of their constitutional rights. The Supreme Court has affirmed that the decision to invoke the Insurrection Act rests solely with the president, but courts can review the lawfulness of the military's actions.

The president's power to deploy the military domestically is subject to legal limits and constraints. The Constitution vests Congress with the authority to "call forth" militias to "execute the Laws of the Union" and "suppress Insurrections," and Congress has authorized or limited the president's use of the military through legislation. The Posse Comitatus Act, for example, prohibits the use of the military for civilian law enforcement, but the Insurrection Act serves as an exception to this prohibition.

In practice, the deployment of the military domestically is influenced by practical and political considerations. The expense of deploying soldiers and the specialized nature of their training make them less suitable for domestic applications. Additionally, the large size, population, and gun ownership in the United States would make a nationwide declaration of martial law extremely challenging.

While President Donald Trump has threatened to deploy the military to states like Minnesota to address civil unrest, he did not invoke the Insurrection Act or formally deploy federal troops. Trump's statements and actions have raised concerns about the potential abuse of power and the need for reforms to the Insurrection Act to define more clearly the circumstances under which it can be invoked.

Trump's supporters called for martial law to keep him in power after his 2020 election loss

In the aftermath of the 2020 election loss, Trump and his supporters promoted the conspiracy theory that widespread electoral fraud occurred during the election, asserting, without evidence, that Trump was the winner. This movement was called "Stop the Steal". Trump continued to insist that he won the 2020 election, and during his public speeches, he claims that massive election fraud caused his loss.

Trump's supporters, including Michael Flynn, Sidney Powell, and L. Lin Wood, suggested that Trump could suspend the Constitution, declare martial law, and rerun the election. Trump held an Oval Office meeting on December 18, 2020, with Rudy Giuliani, Chief of Staff Mark Meadows, White House Counsel Pat Cipollone, Powell, and Flynn, where he entertained the idea of naming Powell as special counsel to investigate election matters.

Trump's consideration of declaring martial law in battleground states and appointing a conspiracy theorist as special counsel to help his attempt to overturn the election was described by Mitt Romney as "really sad" and "nutty and loopy". Trump's supporters' calls for martial law were also met with horror by many retired military officers, attorneys, and other commentators.

Trump himself has stated that one of his biggest mistakes in 2020 was not declaring martial law, despite the advice of his generals. However, Trump's ability to declare martial law unilaterally is questionable. While some scholars argue that the Constitution's enumerated war powers give both Congress and the President the power to declare martial law, the Constitution does not explicitly grant the President this power.

Trump said one of his biggest 2020 mistakes was not declaring martial law

While it is not explicitly stated in the Constitution that the President has the power to declare martial law, scholars argue that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the President this authority.

Articles I and II of the Constitution grant each branch some control over America's military forces. Article II, Section 2, lists the following presidential powers:

> “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; [...] he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The commander-in-chief clause establishes that the President is in charge of the army, navy, and state militias.

In 2020, during the height of the protests surrounding the death of George Floyd, President Donald Trump alluded to the Insurrection Act as a means of calling upon active-duty troops to quell civil unrest. He stated:

> “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them."

Trump also reportedly said that one of his biggest mistakes in 2020 was not declaring martial law, on the advice of his generals. However, it is important to note that a declaration of martial law in the United States would likely face significant practical challenges due to the country's large size, population, and widespread gun ownership.

Martial law would be a catastrophic failure in the US due to its size and population

The imposition of martial law in the United States would be a significant and far-reaching event with potentially catastrophic consequences. The very notion of martial law is a "dramatic departure from normal practice" in the country. While the president can deploy the military in a support role to local governments after natural disasters, martial law goes much further, suspending local laws, civil authority, and judiciaries, and granting a military commander almost unlimited authority to govern an area.

The US is a large country with a huge population, and this presents a significant challenge to any imposition of martial law. The military would likely not have the numbers to enforce such a declaration across the entire country. Most police departments are already seriously understaffed, and they would not have the capacity to resist any federal takeover. The distribution of firearms among the population is another factor that would make enforcement extremely difficult.

The US Constitution does not explicitly grant the president the power to declare martial law. While the president is the commander-in-chief of the armed forces, the power to declare war rests with Congress. The legislative history of the Insurrection Act indicates that Congress considered giving the president the power to declare martial law but ultimately chose not to. This suggests that Congress is aware of the concept of martial law and has intentionally chosen not to authorize it.

The imposition of martial law by a president would be a dramatic and unprecedented move, and in a country the size of the US, with its large population and widespread gun ownership, it would be extremely difficult to enforce. Such a move would likely lead to chaos and could result in widespread civil unrest and violence.

Frequently asked questions