Martial Law: Can Trump Declare It?

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. While the US President does not have the authority to unilaterally declare martial law, there have been instances of the use of the military within the country's borders, such as during the Whiskey Rebellion and the Civil Rights Movement. In the past, martial law has been imposed at least 68 times in limited, local areas, and state officials do have the power to declare it within their state's borders. While Donald Trump has never declared martial law, there have been instances where his administration has been accused of considering it, and Trump himself has stated that one of his biggest mistakes in 2020 was not declaring it.

Martial law in the US

Martial law in the United States involves the temporary substitution of military authority for civilian rule. It is typically invoked during times of war, rebellion, or natural disaster, when civilian authority has ceased to function or is deemed ineffective. While the concept of martial law has been historically used in the US, its meaning remains unclear and poorly understood.

The United States has a long history of imposing martial law, dating back to the American Revolutionary period when British authorities used it to suppress colonial resistance. During the Civil War, both the Union and Confederate forces extensively utilised martial law. In the 90 years between the Civil War and World War II, it was declared at least 60 times. Notable instances include the imposition of martial law in New Orleans during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during the Civil Rights Movement in response to riots.

The authority to declare martial law in the US is a complex and contentious issue. While some sources suggest that the President of the United States lacks the authority to unilaterally declare martial law, others indicate that the President may proclaim it under certain conditions, such as when authorised by Congress. State officials, such as governors, also possess the power to declare martial law within their states, but their actions must abide by the US Constitution and are subject to federal court review.

In recent times, there have been discussions surrounding the potential declaration of martial law by the Trump administration. Following the 2020 election, Paul Ingrassia, a former far-right podcast host and election denier, advocated for the "martial law option" to keep Donald Trump in office. Ingrassia, who served as the Trump administration's liaison to the Department of Homeland Security, shared social media posts and articles urging Trump to use emergency powers to delay Joe Biden's inauguration and ensure election security. These actions highlight the ongoing debate and confusion surrounding the declaration of martial law in the United States.

Presidential authority

The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. Article 1, Section 9 of the US Constitution states that habeas corpus can only be suspended "when in Cases of Rebellion or Invasion the public Safety may require it." This suspension has only occurred once federally, in 1863 during the Civil War.

Historically, martial law has been imposed at least 68 times in limited, typically local areas of the United States. Examples include New Orleans during the Battle of New Orleans, after major disasters like the Great Chicago Fire of 1871, and during riots such as the Omaha race riot of 1919. State officials and governors have the power to declare martial law within their states, but their actions must abide by the US Constitution and are subject to review in federal court.

While the president lacks the unilateral authority to declare martial law, they do have the power to deploy troops to assist civilian law enforcement. However, they cannot replace civilian authorities with federal troops.

In the case of former President Donald Trump, there were concerns and discussions about the possibility of him declaring martial law to remain in office following his loss in the 2020 election. Trump himself stated that one of his biggest mistakes in 2020 was not declaring martial law, indicating his interest in doing so. However, it is important to note that the president cannot unilaterally declare martial law over the entire United States, and any such declaration would face significant logistical and practical challenges due to the country's size, population, and gun ownership rates.

State officials' powers

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. For example, in September 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners.

The United States made extensive use of martial law during the Civil War, imposing it on border states like Missouri and Kentucky, where U.S. forces battled Confederate insurgents. The practice did not end with the Civil War. In the 90 years between the start of the Civil War and the end of World War II, martial law was declared at least 60 times.

In nearly every state, the governor has the power to impose martial law within the borders of the state. This power has been used in a limited number of circumstances, such as in New Orleans during the Battle of New Orleans, after major disasters, such as the Great Chicago Fire of 1871, or the 1906 San Francisco earthquake, or during riots, such as the Omaha race riot of 1919 or the 1920 Lexington riots.

The ability to suspend habeas corpus is related to the imposition of martial law. Article 1, Section 9 of the US Constitution states, "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." There have been many instances of the use of the military within the borders of the United States, but those acts are not tantamount to a declaration of martial law.

Historical instances

In 1892, the governor of Idaho declared martial law in Coeur d'Alene after striking mineworkers blew up a mill and attacked strike-breaking workers. In 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. The Colorado National Guard conducted mass arrests and ignored state court orders to release the prisoners. In 1906, San Francisco was placed under martial law following the earthquake, and troops were used to confiscate dynamite and destroy buildings to prevent fires from spreading. In 1914, martial law was imposed during the Colorado Coalfield War. In 1919, local leaders declared martial law in Omaha to protect themselves from mob violence during a race riot.

In the 1930s, martial law was declared numerous times by Oklahoma Governor William "Alfalfa Bill" Murray, and Georgia Governor Eugene Talmadge declared martial law at the state Highway Board headquarters in 1933. In 1941, Hawaii was placed under martial law after the Japanese attack on Pearl Harbor, and it remained in place until 1942. In 1957, President Dwight D. Eisenhower invoked the Insurrection Act to enforce desegregation in Arkansas, but martial law was not declared. In 1963, martial law was declared during the Cambridge riot, part of the Civil Rights Movement.

Donald Trump's 2020 election loss

In the 2020 US presidential election, Donald Trump lost to Joe Biden, who secured over 81 million votes, winning the popular vote by more than 7 million ballots and the electoral college with 306 votes against Trump's 232. Trump refused to accept Biden's victory and filed several unsuccessful legal challenges across various states. Trump's loss can be attributed to several factors, including his aggressive behaviour, stoking of racial tensions, use of racist language, failure to adequately condemn white supremacy, admiration for authoritarian leaders, and his handling of the COVID-19 pandemic. Trump also made false allegations of widespread voter fraud committed by Democrats, claiming they had stolen the election.

Trump's refusal to concede and his baseless claims of election fraud led to a mob of his supporters storming the US Capitol on January 6, 2021, disrupting Congress as it was about to confirm Biden's victory. The attack, which resulted in the deaths of three police officers and three rioters, was seen as an insurrection, with the FBI labelling it "domestic terrorism". Trump, who allegedly urged his supporters to march to the Capitol, was impeached by the House for "incitement of insurrection" but was later acquitted by the Senate.

In the aftermath of Trump's loss, there were calls by some of his supporters for him to declare martial law to remain in power. Paul Ingrassia, the Trump administration's liaison to the Department of Homeland Security, shared a blog post from his podcast that urged Trump to use emergency powers to delay Biden's inauguration and call for a military-run revote in key battleground states. However, it is important to note that the president does not have the authority to unilaterally declare martial law. While Congress might be able to authorize such a declaration, it has not been conclusively decided.

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