Cameron Miranda
The topic of whether or not martial law can be declared before a newly elected president is a complex one. While the Constitution of the United States does not explicitly define or grant the president the power to declare martial law, it is worth noting that several presidents throughout history have done so. The power to declare martial law is generally associated with the authority to maintain public order and keep the peace, especially in times of emergency, insurrection, or natural disaster. Some scholars argue that the president has the executive power to declare martial law, while others believe congressional authorization is necessary. State officials, such as governors, also play a role in declaring martial law within their respective states, and their actions must abide by the U.S. Constitution. The interpretation of who can declare martial law and under what circumstances remains a subject of ongoing legal discussion and review.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US Constitution does not define who can declare martial law. However, it has been declared by state governors, state legislatures, the president, and Congress throughout history. |
| What is martial law? | Martial law refers to instances when the military assumes governance of an area, enforcing laws instead of civilian authorities and local police. |
| When can martial law be declared? | Martial law is typically declared in response to violent civil unrest, insurrection, natural disasters, or wartime. |
| Is martial law legal? | The legality of martial law is unclear. The US Constitution does not explicitly grant the president the power to declare it, and the Supreme Court has never specifically ruled that the president can. However, Congress might be able to authorize a presidential declaration of martial law. |
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What You'll Learn
The US President's power to declare martial law
The US Constitution does not explicitly grant the president the power to declare martial law. However, several presidents throughout history have imposed or approved declarations of martial law. The Constitution also does not define martial law and is silent on who can impose it.
According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws typically prevent the military from acting within the country. While the president can call on the military to help local governments after a natural disaster, its involvement is usually limited. When martial law is declared, the government assumes governance of the area, and the military commander has virtually unlimited authority.
There are two competing theories regarding the source of the power to declare martial law. The first theory suggests that martial law arises from the government's right, power, and duty to "maintain public order" and keep the peace. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law, as held in Luther v. Borden (1849). The second theory argues that the Constitution's enumerated war powers grant both Congress and the president the power to declare martial law.
Some scholars believe the president has the executive power to declare martial law, while others contend that congressional authorization is necessary for imposing martial law in a civilian area. Congress may be the only governmental branch with the authority to declare martial law, and the president's power in this area is subject to congressional action. The Posse Comitatus Act, enacted in 1878, further complicates the issue by prohibiting the US military from engaging in civilian law enforcement activities, except when expressly authorized by Congress.
While the president's authority to declare martial law remains ambiguous, it is clear that the power to do so is constrained by constitutional checks and balances.
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State officials' power to declare martial law
The US Constitution does not define martial law, nor does it specify who can declare it. However, state officials do have the power to declare martial law, and throughout American history, state governors have imposed or approved declarations of martial law.
State officials have declared martial law in response to violent civil unrest, such as the Akron Riot of 1900, the West Virginia Coal Wars (1920-1921), or natural disasters, like the 1900 Galveston hurricane or the aftermath of Hurricane Katrina in 2005.
State constitutions allow the state governor or legislature to impose martial law. The exact scope and limits of martial law are unclear, and there is sparse and inconsistent legal precedent. When the federal or state governments declare martial law, they suspend all local laws, civil authority, and sometimes local judiciaries. The commanding officer substitutes temporary laws and military tribunals, giving the military commander virtually unlimited authority to govern an area.
While the president may have the power to declare martial law in specific circumstances, it is unclear whether the president can legally do so. The Supreme Court has never specifically ruled that the president can declare martial law.
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Martial law and the suspension of habeas corpus
In the United States, martial law refers to instances when a region, state, city, or the entire country is placed under the control of a military body. Both the US President and the US Congress have the power to impose martial law, and within each state, the governor can also impose martial law within state borders.
Habeas corpus is the right of any person under arrest to appear in person before the court to ensure they have not been falsely accused. The US Constitution specifically protects this right in Article I, Section 9. However, the Constitution also allows Congress to suspend habeas corpus in cases of rebellion or invasion when public safety is at risk.
The suspension of habeas corpus and martial law are distinct concepts, but they are often linked. Suspending habeas corpus does not imply an unusual role for the armed forces, but it does allow the government to detain and hold individuals without charge. When martial law is declared, individuals who have been detained by the military may petition for a writ of habeas corpus, and a federal court can order their release.
Throughout history, martial law has been imposed at least 68 times in the United States, and habeas corpus has been suspended federally only once, in 1863 during the Civil War. President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, and suspended habeas corpus for "prisoners of war, spies, or aiders and abettors of the enemy." The Supreme Court later ruled that Lincoln's imposition of martial law and suspension of habeas corpus was unconstitutional in areas where local courts were still operational.
In the Philippines, the suspension of the writ of habeas corpus and the declaration of martial law are also linked. The Philippine Constitution states that in cases of invasion or rebellion, when public safety is at risk, the President may suspend the writ of habeas corpus for up to 60 days.
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Wartime and the use of martial law
During the Civil War, President Abraham Lincoln imposed martial law in border states between the North and South, such as Missouri and Kentucky, where Union and Confederate forces clashed. This period also witnessed the suspension of habeas corpus, a fundamental right protecting individuals from unlawful imprisonment without a court hearing. The Supreme Court later ruled in Ex parte Milligan (1866) that Lincoln's suspension of habeas corpus was void, underscoring the delicate balance between civil liberties and the extraordinary measures invoked during martial law.
In more recent history, martial law was declared in Hawaii during World War II, targeting Japanese-Americans for incarceration on the West Coast. This declaration was subsequently expanded by President Franklin Roosevelt's executive order.
The use of martial law in wartime extends beyond American borders. Post-World War II Germany and Japan experienced military rule during the reconstruction process, and similar measures were implemented in the former Confederate States of America. Additionally, the German occupation of northern France between 1871 and 1873, following the Franco-Prussian War, provides another example of martial law in a foreign occupation context.
While the president's authority to declare martial law remains a subject of debate, with some scholars arguing it requires congressional authorization, the practical application of martial law during wartime has been evident throughout history. The interpretation of the law, particularly in times of necessity, allows for a degree of flexibility in addressing extraordinary circumstances.
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Congress's role in declaring martial law
The US Constitution does not explicitly grant the president the power to declare martial law. Instead, it gives most of the relevant authority to Congress. According to the Posse Comitatus Act, passed by Congress in 1878, it is illegal for federal military forces to engage in civilian law enforcement activities without congressional approval. This directly contradicts the notion of martial law, where the military temporarily assumes control from civilian authorities.
Congress has also passed a multitude of laws related to domestic military deployment, which restrict the president's ability to use the military domestically. These laws "occupy the field", meaning that any use of the military by the president that Congress has not authorised would be against Congress's will.
Some scholars argue that the Constitution's enumerated war powers give both Congress and the president the power to declare martial law. However, others believe that the president requires congressional authorisation to impose martial law in a civilian area. In this view, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.
While there is no federal statute that defines martial law, it is generally understood as the temporary substitution of military authority for civilian authority. In the US, martial law has been declared more than 60 times, mostly by state and local officials.
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Frequently asked questions
The US Constitution does not define martial law and does not specify who can declare it. While the Supreme Court has never explicitly ruled that the president can declare martial law, several presidents throughout history have done so.
Martial law refers to instances when a nation's armed forces assume the governance of an area. Officials impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster.
Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. Congress has the power to declare war and provide for carrying on war, which could extend to declaring martial law.
Yes, state officials have the power to declare martial law, but their actions under the declaration must abide by the US Constitution and are subject to review in federal court. State governors have imposed or approved declarations of martial law throughout American history.
