Martial Law: A President's Power Grab?

Martial law is a highly contentious issue, with the US Constitution remaining silent on its definition and who can impose it. It involves the temporary substitution of military authority for civilian rule, typically during war, rebellion, or natural disaster. While the US President can be the Commander-in-Chief of the militia, the power to declare martial law is ambiguous, with some scholars arguing for executive power and others for congressional authorization. The Insurrection Act grants the President extensive authority to deploy the military domestically, but the exact scope and limits of martial law remain unclear. Historically, martial law has been used to suppress dissent, as seen in the West Virginia Coal Wars and under President Ferdinand Marcos in the Philippines, where human rights abuses occurred. The use of martial law by state governors has also been controversial, with instances of abuse and segregation. The Supreme Court has provided limited guidance, and the modern interpretation allows for degrees of martial law in specific circumstances.

Who can impose martial law?

In the United States, martial law has been imposed at least 68 times, mostly by state and local officials. However, the US Constitution does not define martial law and does not specify who can declare it. There is no federal statute that defines the term either. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, it has held that individual states have the power to do so, and almost all state constitutions allow the state governor or legislature to impose martial law.

Several presidents and many state governors have imposed or approved declarations of martial law throughout American history. While the Constitution does not explicitly grant the president the power to declare martial law, some scholars believe the president has the executive power to do so. Others believe the president needs congressional authorization. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.

Martial law is typically imposed when civilian authority over an area has stopped functioning, such as during an insurrection or natural disaster. It refers to when the military temporarily substitutes its authority for that of the civilian government. When the federal or state governments declare martial law, they suspend all local laws, civil authority, and sometimes local judiciaries. In their place, the commanding officer substitutes temporary laws and military tribunals.

What is martial law?

Martial law is a system of rules that is implemented when military authority takes over from the civilian government in response to a crisis or emergency. The military is given virtually unlimited authority to enforce rules and suppress disorder, and civilian courts and authorities are often suspended. Martial law has been declared in the United States over 60 times, and in many other countries, including China, Egypt, Brunei, Bangladesh, and Azerbaijan.

In the United States, martial law has been declared in response to disasters, riots, and civil disorder. For example, in 1814, General Andrew Jackson imposed martial law in New Orleans during the Battle of New Orleans, imposing strict curfews and travel restrictions. Similarly, in 1920-1921, martial law was declared in West Virginia during the West Virginia Coal Wars, and federal troops were used to imprison striking union miners without trial.

The US Constitution does not define martial law or specify who can impose it, but it is generally agreed that the President and Congress have the power to impose it in specific circumstances. Some scholars argue that the President has the executive power to declare martial law, while others believe congressional authorization is required. The Supreme Court has also weighed in on the use of martial law, with cases like Sterling v. Constantin (1932) and Luther v. Borden (1849) shaping the interpretation of martial law.

While martial law can be necessary in times of crisis, it is a drastic measure that upends the normal relationship between the military and civilian authorities. The displacement of civilian government and the suspension of civilian rights are characteristic of martial law, and it is therefore a power that must be wielded with caution and within the bounds of court decisions.

What powers does it grant?

The powers granted by martial law vary depending on the country and the specific circumstances under which it is imposed. In general, martial law refers to the state being placed under the control of a military body, with the military exercising jurisdiction over civilians in a particular area. Here are some of the specific powers that can be granted by martial law:

United States

In the United States, martial law has been declared over 60 times, with the power to impose it resting with the US President and Congress, as well as state governors within their respective states. While the US Constitution does not define martial law, it grants the President and Congress certain war powers that can be interpreted to include the power to declare martial law.

During periods of martial law in the US, the following powers have been granted or exercised:

• Suspension of the writ of habeas corpus, as done by President Abraham Lincoln in 1863
• Curfews and travel restrictions, as imposed by General Andrew Jackson in New Orleans in 1814
• Arrest and imprisonment without trial, as occurred during the West Virginia Coal Wars in 1920-1921
• Censorship of the press, as General Jackson did by warning newspapers not to publish information about the Treaty of Ghent without his approval
• Confiscation of governing and judicial powers, as done by the territorial governor of Hawaii, Joseph Poindexter, during World War II
• Deployment of troops to assist civilian authorities, as allowed by the Insurrection Act and Title 32

Other Countries

In other countries, martial law has granted the following powers:

• The ability to dissolve parliament and suspend the constitution, as seen in Egypt
• Authority for police and military to crack down on protesters, as occurred in Bahrain in 2011
• The power to arrest civilians and "protect public and vital facilities," as granted to the armed forces in Finland through the Preparedness Act
• The right to grant reprieves and pardons for offences against the state, as granted to the President of the United States in Article II, Section 2 of the US Constitution

What are the limits of martial law?

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. The suspension of habeas corpus is related to the imposition of martial law. 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.

In US history, martial law has been imposed at least 68 times, mostly in limited, local areas. It has been declared twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labour dispute, four times for natural disaster, and fifteen times for other reasons.

On a national level, the US President and Congress have the power to impose martial law, as both can be in charge of the militia. However, there are no existing federal statutes that authorize the president to declare martial law. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities, unless authorized by Congress. The Insurrection Act allows the president to deploy the military to assist civilian authorities with law enforcement activities.

The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if authorized by the constitution or laws of the state. State officials are bound by the US Constitution and valid federal laws, and individuals can challenge a state declaration of martial law by seeking injunctive relief in federal court.

The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power and would likely be used to determine whether a president’s martial law declaration has exceeded their authority. According to Youngstown, when Congress has addressed an issue by passing a statute, the president cannot act against Congress’s will unless the Constitution gives the president “conclusive and preclusive” power over that issue.

In summary, while the US President and Congress have the power to impose martial law, there are legal constraints that must be considered. The Posse Comitatus Act and the Insurrection Act impact the president's ability to declare martial law, and the Supreme Court has provided guidance on the limits of executive power.

What are the historical examples of martial law being used?

Martial law has been declared numerous times throughout history, often during times of war, civil unrest, or natural disasters. Here are some notable examples:

The Black War in Tasmania (1828-1832)

Lieutenant-Governor George Arthur declared martial law in November 1828 during the Black War, a violent conflict between British colonists and Aboriginal Australians in Tasmania. This declaration effectively provided legal immunity for killing Aboriginal people and remained in force for over three years, making it the longest period of martial law in the history of British colonies on the Australian continent.

Colorado Coalfield War (1913-1914)

The Colorado National Guard was initially called in to quell strikers in Ludlow, Colorado, during the Colorado Coalfield War. However, the makeup of the Guard shifted from impartial troops to companies of loyal mine guards, leading to increased clashes. The governor proclaimed martial law, which eventually resulted in the Ludlow Massacre.

Hawaii during World War II

Hawaii was placed under martial law after the Japanese attack on Pearl Harbor in December 1941. During this time, military police arrested civilians for violations of civilian laws, such as the case of stockbroker Harry White, who was arrested for embezzlement.

Utah Territory (1857)

Brigham Young, facing an approaching army, declared martial law in the Utah Territory. He ordered the people of Salt Lake City to burn their homes and retreat to Provo. Young's declaration included forbidding armed forces from entering the territory and restricting travel without a permit.

Pakistan (1971-1977)

In 1971, Zulfikar Ali Bhutto became the first civilian martial law administrator in Pakistan's recent history, imposing selective martial law in areas hostile to his rule. However, following widespread civil disorder, General Zia overthrew Bhutto and imposed total martial law in a bloodless coup d'état in 1977.

United States Civil War

During the Civil War, President Abraham Lincoln imposed martial law in the border states between the North and South. He suspended the writ of habeas corpus, allowing for the detention of individuals without charge.

It is important to note that the declaration of martial law often involves the suspension of civil liberties and the replacement of civilian authorities with military rule. While it can be used as a tool to maintain order during emergencies, it has also been criticized for granting unlimited authority to military commanders and sidestepping the constitutional division of powers.

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