Gavin Howe
Martial law is an extreme measure that involves the application of military force to control society during war, civil unrest, or chaos. While the United States Constitution does not explicitly grant the right to declare martial law, it is generally accepted that the President, as Commander-in-Chief, and Congress, through its power over the militia, can impose martial law at the national level. At the state level, the governor of a state may declare martial law within their borders, typically in response to invasion, rebellion, natural disasters, or a complete breakdown of civil order. This power is usually derived from the state constitution, and while it has been used in several instances throughout US history, it is viewed with suspicion due to the potential suspension of civil liberties and the power it grants to the military.
| Characteristics | Values |
|---|---|
| Who can declare martial law in the US? | The US President, US Congress, and state governors. |
| What is martial law? | The application of military force to control all or part of an area where civilian authority is ineffective or in defiance of a higher authority. |
| What happens during martial law? | Civil liberties may be suspended, including freedom of movement, freedom of association, and freedom from unreasonable searches and seizures. |
| What is the legal basis for martial law in the US? | Article I, Section 8, Clause 15, and Article II, Section 2, Clause 1 of the US Constitution. The Insurrection Act of 1807. |
| When has martial law been declared in the US? | During the Civil War, World War II, and in various states during periods of civil unrest, natural disasters, and racial tensions. |
| What is the difference between martial law and a state of emergency? | During a state of emergency, civilians are still in control, and the military lends support. During martial law, the military takes over civilian institutions, and rights may be entirely suspended. |
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What You'll Learn
The US President can declare martial law
The US Constitution does not explicitly grant the US President the power to declare martial law. However, according to national security law scholar Joseph Nunn, the President can call on the military to help local governments after a natural disaster or in the event of a terrorist attack. This power is limited, and the Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities.
Some scholars believe the President has the executive power to declare martial law, while others argue that congressional authorization is required for the President to impose martial law in a civilian area. The Supreme Court has never explicitly ruled that the President can declare martial law. However, the Constitution Annotated notes that martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law.
The Insurrection Act of 1807 allows the President to deploy military forces to quell rebellions and assist local law enforcement in addressing domestic violence. Additionally, the John Warner National Defense Authorization Act of 2007 granted the President the authority to declare martial law and command National Guard units from each state without requiring the consent of state governors. This expansion of presidential power led to concerns about the potential usurpation of the role of state governors.
In summary, while the US President does possess the power to declare martial law, its use is subject to certain constraints and has been a subject of debate among scholars and lawmakers.
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Congress can declare martial law
While the US Constitution does not explicitly define when a president can declare martial law, it also does not specifically forbid it. The Constitution and founding documents also do not mention martial law, nor has Congress passed a law specifying when martial law can be declared. However, Congress has the power to impeach a president for an abuse of power, such as declaring martial law without cause.
Congress has the authority to impose martial law, as it can be in charge of the militia. Congress declared martial law during the Civil War, and President Abraham Lincoln invoked martial law with Congressional approval. Congress also enacted a bill that symbolically endorsed Andrew Jackson's imposition of martial law in New Orleans.
Congress has also passed several laws that specifically allow troop deployment on US soil. For example, the Posse Comitatus Act forbids US military involvement in domestic law enforcement without Congressional approval. The Insurrection Act, a federal law enacted in 1807, allows the president to deploy the military to suppress insurrections, rebellions, or domestic violence to enforce federal laws and maintain public order.
While the president can declare martial law with Congressional approval, it is unclear if they can do so independently. The Supreme Court has implied that the federal government can declare martial law, but it has never explicitly stated this. The Court has also never indicated whether the president could unilaterally declare martial law or if Congressional authorization is required.
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State governors can declare martial law
In nearly every state, the governor has the power to impose martial law within the borders of the state. This power is usually granted by the state constitution. For example, in North Carolina in 1870, Governor William Woods Holden declared martial law in two counties to combat rising Ku Klux Klan activity. Similarly, in 1775, Lord Dunmore, the royal governor of Virginia, declared martial law, offering freedom to enslaved individuals who joined British forces against the rebelling colonists.
During the COVID-19 pandemic, some citizens and service members wondered if martial law would be declared as more states called upon the National Guard for aid. However, California Governor Gavin Newsom stated that martial law was unnecessary to combat the coronavirus in his state.
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Martial law suspends civil liberties
In the United States, both the US President and the US Congress can impose martial law within certain constraints. Nearly every state governor also has the power to impose martial law within their state's borders. However, Congress has never solely imposed it.
Martial law is a legal theory that is frequently associated with the suspension of civil liberties. It can be used by governments to enforce their rule over the public. While there is no precise definition of martial law, it is understood that certain civil liberties may be suspended under it, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. The suspension of these rights can lead to strict curfews and travel restrictions, as seen in the case of Jackson, who imprisoned those who challenged his authority and warned newspapers not to publish information he had not approved.
The imposition of martial law can also result in the suspension of the writ of habeas corpus, which is the right to a trial before imprisonment. This suspension allows for preventative arrests and indefinite detentions without trial. For example, during the War of 1812, General Andrew Jackson imposed martial law in New Orleans, leading to mass arrests and overcrowded jails.
In some cases, martial law can grant the military or executive branch the power to dissolve the parliament or legislative body and suspend the constitution. This was seen in Egypt, where the military gained the power to dissolve parliament and suspend the constitution through a series of announcements that served as the legal framework during martial law. Similarly, in Pakistan, General Pervez Musharraf imposed martial law, suspended the Constitution, Parliament, and Provincial Assemblies, and issued a "Proclamation of Emergency".
The declaration of martial law can also lead to the suppression of free speech and the press. In Myanmar, the military junta that seized power in 2021 used martial law to kill over sixty-five protestors and intimidate or coerce individuals in civil litigations. Media networks may be suspended, and journalists may face repercussions for speaking against the government, as seen in cases where journalists were taken as political prisoners and physically abused by authorities.
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Martial law is distinct from a state of emergency
In the United States, the US President and Congress have the power to impose martial law, and in nearly every state, the governor can impose martial law within their state borders. However, martial law is distinct from a state of emergency. While there is no precise definition of martial law, it is generally understood that certain civil liberties may be suspended under it, such as freedom of movement and the right to a trial before imprisonment.
In India, for example, a state of emergency is a period of governance initiated by the President in exceptional circumstances. Certain sections of the Constitution, which guarantee Fundamental Rights to the people of India, may be overridden by a directive from the President's cabinet. A state of emergency can be implemented within the entire nation or a confined area. On the other hand, martial law is not outlined by any particular regulation in India but derives its authority from the Indian Constitution. During martial law, Article 34 of the Constitution puts certain restraints on the inalienable rights of citizens. Unlike typical civil administration, martial law is a body of regulations managed by the military.
In Syria, martial law was established in response to the declaration of a state of emergency. The prime minister of Syria, acting as the martial law governor, was granted extraordinary powers through his declaration of a state of emergency. Syrian laws enabled the martial law governor to place many restrictions on the freedoms of individuals, such as with respect to meetings, residence, travel, and passage in specific places or at particular times.
In Canada, the War Measures Act was a statute that allowed the government to assume emergency powers, but it stopped short of martial law, as the military did not administer justice, which remained in the hands of the courts. Similarly, Finland's Emergency Preparedness Act, which consists of the Preparedness Act and the Defence Status Act, provides the authorities with sufficient powers in times of war and other exceptional circumstances without resorting to martial law.
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Frequently asked questions
Martial law is the application of military force to control all or part of an area where civilian authority is ineffective or in defiance of higher authority. It is an extreme and rare measure used to control society during war or periods of civil unrest or chaos.
On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law. In nearly every state, the governor has the power to impose martial law within the borders of the state, usually granted in the state constitution. Congress has never declared martial law.
Martial law has been declared in the US several times, including in Virginia in 1775, New York in 1776, New Orleans in 1814, San Francisco in 1906, Omaha in 1919, Lexington in 1920, and Hawaii during World War II.
