Martial Law: Can The Federal Government Impose It?

Martial law has been declared over 60 times in US history, mostly by state and local officials. However, the US Constitution does not define martial law, and there is no universal definition. The Supreme Court has never explicitly ruled that the President or federal government can declare martial law. The Posse Comitatus Act and the Insurrection Act are two federal laws that impact the President's ability to declare martial law. The former prevents the US military from participating in civilian law enforcement, while the latter allows the President to deploy the military to address rebellions and domestic violence. While the President can call on the military to aid local governments in emergencies, their ability to declare martial law remains unclear and subject to interpretation.

The US President cannot declare martial law

The US President does not have the authority to declare martial law. While the US Constitution does not explicitly define martial law, it also does not grant the president the power to declare it. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and any legislation regarding the use of the military does not include authorization for the president to impose martial law. Therefore, the president has no power to unilaterally declare it.

The Posse Comitatus Act, enacted by Congress in 1878, further prevents the US military from participating in civilian law enforcement activities. This Act strengthens the separation of powers between Congress and the president. While the president can call on the military to help local governments after natural disasters, this is usually limited in scope.

The Supreme Court has also never specifically ruled that the president can declare martial law. While the Court has implied that the federal government can declare it, it has never stated this conclusively. The Court has also not conclusively decided that the federal government is constitutionally empowered to declare martial law.

The US Constitution explicitly vests power in the legislative branch regarding the domestic use of the military. Therefore, a unilateral declaration of martial law by the president would not survive a legal challenge. While Congress has given the president considerable authority to use troops domestically, this does not equate to the power to declare martial law.

The ability to declare martial law rests with Congress, and the president can only act according to its actions. State governors also have the power to impose martial law within their states, and they have done so far more frequently than the federal government.

State officials can declare martial law

In the United States, state officials have the power to declare martial law. This has been done far more frequently than the federal government, with state and local officials declaring it more than 60 times in US history. The Supreme Court has held that individual states have the power to declare martial law, provided it is authorised by the constitution or laws of the state.

State governors, in particular, have been responsible for declaring martial law on numerous occasions. For example, 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. In 1933, Georgia Governor Eugene Talmadge declared martial law at the state Highway Board headquarters to force out some of the board's commissioners, whom he had no legal power to remove.

State officials have also declared martial law in response to violent civil unrest, natural disasters, and to reinforce local police. For instance, in 1900, martial law was declared in response to the Akron Riot and the Galveston hurricane. In 1906, following the San Francisco earthquake, federal troops were pressed into martial law service, enforcing strict curfews and travel restrictions. In 1917, martial law was declared in Spokane, Washington, following a raid on the office of the Industrial Workers of the World (IWW).

While states have the authority to declare martial law, they are still bound by the US Constitution and valid federal laws. Individuals can challenge a state's declaration of martial law by seeking injunctive relief in federal court and, if detained, they can petition for a writ of habeas corpus.

Martial law suspends local laws and civil authority

Martial law is the replacement of civilian government by military rule and the suspension of civilian authority and legal processes. It is often declared in times of war, civil unrest, natural disasters, or military coups. The military's authority under martial law is virtually unlimited, and standard civil liberties may be suspended. For example, during the 2006 Lebanon War, martial law was declared in the north of the country, and the Israel Defense Forces were granted the authority to issue instructions to civilians, close down offices, schools, and factories, and impose curfews.

In the United States, the power to declare martial law rests with state governments and has been used far more frequently by them than by the federal government. The US Constitution does not grant the President the power to impose martial law, and Congress has not provided authorization for the President to do so. However, the Supreme Court has held that individual states have the power to declare martial law if it is authorized by the state's constitution or laws.

The concept of martial law is not limited to the United States and has been invoked in various countries throughout history. For instance, in 1892, the governor of Idaho declared martial law in response to striking mineworkers who blew up a mill and shot at strike-breaking workers. In Egypt, under President Abdel Fattah el-Sisi, the military was granted the authority to intervene in national politics to "preserve the constitution and democracy, protect the basic principles of the state and its civil nature, and protect the people's rights and freedoms."

While martial law suspends local laws and civil authority, it is not entirely lawless. Even under martial law, the government is still bound by the Constitution and cannot suspend or violate constitutional rights. The declaration of martial law is subject to judicial review, and individuals can challenge it by seeking injunctive relief in federal court.

The military enforces strict rules during martial law

While there is no universal definition of martial law, it often refers to the use of the military for law enforcement. Under total martial law, the normal American law enforcement and legal system are replaced by a stricter set of laws and punishments that are completely controlled by the military or executive branch of the government. The normal checks and balances system built into the Constitution is suspended.

In another instance, in 1892, in Coeur d'Alene, Idaho, the governor declared martial law in response to striking mineworkers blowing up a mill and shooting at strike-breaking workers. Over 600 people were arrested, and the list was narrowed down to two dozen ringleaders who were tried in a military court.

Martial law has also been declared in response to violent civil unrest or natural disasters. For example, in 1900, the Galveston hurricane led to a declaration of martial law. In 1906, federal troops stationed in the Presidio were pressed into martial law service after an earthquake, and all dynamite was confiscated to prevent fires from spreading.

The power of martial law is limited by several court decisions, and civilians may not be tried by military tribunals as long as civilian courts are functional. The military's authority during martial law is also subject to judicial review, and individuals can challenge a declaration of martial law by seeking injunctive relief in federal court.

Congress may be the only branch to declare martial law

The US Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. However, this legislation does not include authorization for the president to impose martial law. Even if Congress were to provide authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law.

The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. This act further underscores that Congress, not the Executive, should control the utilization of the war power as an instrument of domestic policy.

The lack of a clear federal statute defining martial law and its scope has led to ambiguities and a need for Congress to pass legislation that better defines the concept and its limits. The term "martial law" has been used historically to describe a wide variety of actions and practices for the military, making the exact scope and limits of its power dangerously unclear.

While the Insurrection Act is law, the fact that martial law is not codified means its use falls into a legal grey area. Congress may be the only branch that can provide the necessary clarification and authorization to impose martial law.

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