Cecily Zamora
Martial law is a complex and contentious issue that has been the subject of much debate and interpretation. It refers to a state of emergency where military authorities assume control from civilian governments, typically in response to civil unrest or war. While the exact scope and limits of martial law are unclear, it is generally understood that even under martial law, the Constitution remains in effect, and state officials must abide by its guarantees. The question of whether martial law can suspend the Constitution has been raised multiple times throughout US history, with some arguing that the President has the authority to declare it, while others maintain that only Congress has the power to authorize such a declaration. The Supreme Court has provided limited guidance on this matter, and the few precedents that exist are old and inconsistent, leaving the legal basis for martial law in the US ambiguous.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The president lacks the authority to declare martial law. State officials can declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court. |
| What is martial law? | Martial law usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. |
| What rights are suspended under martial law? | The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left “forever inviolable”. |
| What is the scope and limits of martial law? | The exact scope and limits of martial law are unclear due to sparse and confusing legal precedent, old and inconsistent Supreme Court precedent, and a lack of federal statutes defining martial law. |
| Can martial law be challenged? | Yes, individuals can challenge a declaration of martial law by seeking injunctive relief in federal court and petitioning for a writ of habeas corpus if detained. |
| What is the historical context of martial law in the U.S.? | Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. |
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What You'll Learn
Martial law in the US: history and meaning
In the United States, martial law refers to an emergency situation where the military takes control from civilian authorities and exercises jurisdiction over civilians in a particular area. This usually occurs in times of war, rebellion, or natural disaster when civilian authority has ceased to function or is deemed ineffective. Martial law has been declared more than 60 times in US history, mostly by state and local officials.
History
The concept of martial law in the US is closely tied to the right of habeas corpus, which guarantees the right to a hearing and trial on lawful imprisonment. The Constitution allows Congress to suspend habeas corpus, but all other rights it guarantees remain inviolable. For example, there is no constitutional procedure for suspending the First Amendment's protection of free expression or the Fifth Amendment right to due process.
Martial law has been declared in the US in various circumstances, including during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during riots and civil rights movements in the early 20th century. In 1934, martial law was declared in Hawaii after Japan's attack on Pearl Harbor. In the 1930s, Oklahoma Governor William "Alfalfa Bill" Murray declared martial law at least six times.
Meaning
The meaning of martial law in the US is not well understood, and there is no established definition. The Supreme Court has never clearly stated whether the federal government or the president has the power to declare it. While the president lacks the authority to unilaterally declare martial law, Congress might be able to authorize such a declaration. State officials, including governors, do have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court.
Under martial law, a military commander's authority is virtually unlimited within the bounds of court decisions. Martial law suspends all existing laws and civil authority, including the ordinary administration of justice. However, civilians may not be tried by military tribunals as long as civilian courts are functional.
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The US President's powers
The US Constitution does not grant the president the power to declare martial law. The Supreme Court has never explicitly ruled on whether the federal government or the president can declare martial law. The Posse Comitatus Act, enacted in 1878, prohibits the US military from engaging in civilian law enforcement activities without congressional approval. This Act strengthens the separation of powers between Congress and the president.
However, the Insurrection Act of 1807 allows the president to deploy military forces to quell rebellions within the US and assist local law enforcement in dealing with domestic violence. The John Warner National Defense Authorization Act for Fiscal Year 2007, signed into law by President George W. Bush, also gave the president the power to declare martial law and command National Guard units without the consent of state governors.
Some scholars argue that the president has the executive power to declare martial law, while others contend that congressional authorization is necessary. The Constitution does not explicitly define martial law, and its interpretation has evolved through historical usage.
During times of martial law, a military commander's authority is virtually unlimited, superseding local laws, civil authority, and sometimes local judiciaries. However, state officials declaring martial law must still abide by the US Constitution and valid federal laws, and their actions can be challenged in federal court.
In summary, while there is ambiguity surrounding the president's powers to declare martial law, the weight of evidence suggests that the president does not have unilateral authority and requires congressional authorization.
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Supreme Court rulings
The Supreme Court has never explicitly ruled on whether the federal government or the president has the power to declare martial law. However, there are a few rulings that provide insights and a framework for analyzing the use of martial law and executive power.
One notable case is the 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer. This case didn't involve martial law directly, but it established a precedent for evaluating exercises of executive power. According to the ruling, when Congress has passed a statute on an issue, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue. This precedent could be used to determine whether a presidential declaration of martial law is constitutional.
In the case of Ex parte Milligan (1866), the Supreme Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still operational. This ruling affirmed that even during emergencies, constitutional rights must be upheld.
In 1946, the Supreme Court ruled in Duncan v. Kahanamoku that the Constitution applied in full to Hawaii, which was then an incorporated territory, and that the legality of martial law there should be analyzed as if it were a state. This decision challenged the idea that territories under US control could be treated differently regarding constitutional rights.
Another case that indirectly touches on martial law is Luther v. Borden. In this case, the Supreme Court held that state declarations of martial law were conclusive and not subject to judicial review. This decision suggested that states have the authority to declare martial law within their jurisdictions.
Overall, while the Supreme Court has not directly addressed the constitutionality of martial law declarations by the federal government or the president, various rulings have shaped our understanding of the limits of executive power and the application of constitutional rights during emergencies.
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Congress's role
The concept of martial law has never been well understood. While it has been declared more than 60 times in U.S. history, the term has no established definition. This is because different people have used the term to describe a wide variety of actions, practices, or roles for the military. Generally, it refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area.
Congress has placed clear and wide-ranging restrictions on the president's ability to use the military domestically. A presidential declaration of martial law would violate these rules. The Constitution does not grant the president "conclusive and preclusive" power over the issue of domestic military deployment. Instead, it gives most of the relevant authority to Congress.
While the Supreme Court has never explicitly stated whether the federal government has the power to declare martial law, its 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power. 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.
Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. 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.
The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left "forever inviolable." For example, there is no constitutional procedure for suspending the First Amendment's protection of free expression or the Fifth Amendment right to due process.
In conclusion, while the exact scope and limits of martial law remain unclear, Congress plays a crucial role in restricting the president's ability to declare it and in authorizing any such declaration. Congress should pass legislation that better defines the scope of martial law to provide clarity and prevent potential abuses of power.
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State officials' authority
In the United States, 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. The Constitution and valid federal laws will still constrain states' conduct under the declaration, and judicial review will be available in federal court.
The Supreme Court has never clearly stated whether the federal government has the power to declare martial law, and if so, whether the president could unilaterally declare it or whether it would require congressional authorization. However, the Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power. According to Youngstown, when Congress has addressed an issue by passing a statute, the president cannot act against Congress's will—as expressed in the statute—unless the Constitution gives the president "conclusive and preclusive" power over that issue.
Congress has placed clear and wide-ranging restrictions on the president's ability to use the military domestically. A presidential declaration of martial law would violate these rules. The Constitution does not grant the president "conclusive and preclusive" power over the issue of domestic military deployment. On the contrary, it gives most of the relevant authority to Congress.
Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. It usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. However, the term has no established definition, and the exact scope and limits of martial law are dangerously unclear.
During the West Virginia Coal Wars (1920–1921), martial law was declared in the state of West Virginia. At the behest of Governor Cornwell, federal troops were dispatched to Mingo County to deal with the striking miners. The army officer in charge acted under the Suspension Clause of Article I of the United States Constitution and did not allow assembly of any kind. Miners were arrested, jailed, and released without any sort of trial.
While the military commander's authority under martial law is virtually unlimited, Department of Defense personnel are limited in what they can do to enforce civil law. Military personnel cannot be used in surveillance or undercover operations, and they may not be used as informants, investigators, or interrogators unless the investigation is a joint military-civilian operation.
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Frequently asked questions
Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. However, the U.S. president does not have the authority to declare it. The Supreme Court has never clearly stated whether the federal government has the power to declare martial law. While the president has ample authority under current law to deploy troops to assist civilian law enforcement, they cannot replace civilian authorities with federal troops. State officials can declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court.
Martial law usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area.
Martial law has been declared nine times since World War II. In five instances, it was designed to counter resistance to federal desegregation decrees in the South. Another example is when Governor Poindexter of Hawaii declared martial law in 1941, suspending the writ of habeas corpus and conferring his powers as governor to the local commanding General of the Army.
