Gavin Howe
Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. It involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. While the U.S. Constitution does not define martial law, it grants Congress the power to regulate the domestic deployment of the military. The Supreme Court has never explicitly ruled on whether the federal government or the president can declare martial law, and there is no federal statute defining it. However, the Insurrection Act of 1807 allows the president to deploy the military to address rebellions and domestic violence. So, can the federal government or the president declare martial law?
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US Constitution does not define who can impose martial law. However, it is generally believed that the federal government, state governments, state governors, and the president can declare martial law. |
| What is martial law? | Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. |
| What happens when martial law is declared? | When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, suspend local laws, civil authority, and sometimes, local judiciaries. |
| Can the president declare martial law? | The US Constitution does not explicitly grant the president the power to declare martial law. The Supreme Court has never clearly stated whether the president can declare martial law. |
| Can Congress declare martial law? | Congress has the power to declare war and provide for carrying on war. However, it is unclear if this includes the power to declare martial law. |
| Can states declare martial law? | State officials and governors have declared martial law more frequently than the federal government. States may declare martial law when authorized by state 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. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and it has enacted legislation in this area, but this does not include authorization for the President to impose martial law. Therefore, the President does not have the power to unilaterally declare martial law.
However, there are two federal laws that impact the President's ability to declare martial law: the Posse Comitatus Act and the Insurrection Act. The Posse Comitatus Act, enacted in 1878, prevents the US military from participating in civilian law enforcement activities and strengthens the separation of powers between Congress and the President. On the other hand, the Insurrection Act of 1807 allows the President to deploy military forces to put down rebellions within the US and help local law enforcement deal with domestic violence. The Insurrection Act is considered the primary exception to the Posse Comitatus Act.
Some scholars argue that the Constitution's enumerated war powers grant both Congress and the President the power to declare martial law. They believe that the President has the executive power to declare martial law, especially during wartime when "supreme political authority" allows for the valid and constitutional use of martial law. However, others believe that the President needs congressional authorization to impose martial law in a civilian area.
The Supreme Court has never explicitly ruled that the President or the federal government can declare martial law. The limited Supreme Court precedent on martial law is old, vague, and inconsistent. The Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power, but it does not address the specific issue of martial law.
In summary, while the President may have some authority to declare martial law in certain circumstances, the power to do so ultimately rests with Congress. The President's ability to declare martial law is further limited by federal laws, the Constitution, and the need for judicial review.
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Congress's power to declare martial law
The US Constitution gives Congress the authority to regulate the domestic deployment of the military, and it 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 such authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law.
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 do so unilaterally or whether congressional authorization would be required. The 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 by a court to determine whether a president's martial law declaration exceeded their authority. 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 expressed its will regarding the domestic deployment of the military through the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non-Detention Act, and various other provisions within Title 10 of the US Code. The Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without congressional approval. While there are statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law.
In the rare instances where martial law has been declared at the federal level, it has been done so by Congress or with its authorization. For example, in 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. Additionally, in 2006, Congress passed the John Warner National Defense Authorization Act, which gave the president the power to declare martial law and take command of the National Guard units of each state without the consent of state governors.
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State governments' power to declare martial law
While the US Constitution gives Congress the authority to regulate the domestic deployment of the military, it does not include authorization for the president to impose martial law. Hence, the president has no power to do so. The Supreme Court has also never clearly stated whether the federal government has the power to declare martial law, and if so, whether the president could do so unilaterally or if congressional authorization would be required.
On the other hand, state governments and governors have declared martial law far more often than the federal government. State officials have sometimes declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of 1900 or the 1900 Galveston hurricane. They have also used martial law to break labor strikes on behalf of business interests. For example, in September 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 nearly every state, the governor has the power to impose martial law within the borders of the state. A state declaration of martial law is valid if it is authorized by the constitution or laws of the state. However, 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.
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Martial law and the US Constitution
The US Constitution does not define martial law and does not specify who can impose it. However, the federal government is bound by the Constitution at all times, even under martial law. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted legislation in this area. This legislation does not include authorization for the president to impose martial law.
The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from engaging in civilian law enforcement activities. Its enactment strengthened the separation of powers between Congress and the president. The Insurrection Act of 1807 is an exception to the Posse Comitatus Act, allowing the president to deploy military forces to address rebellions, support local law enforcement, and enforce the law in specific situations.
State officials, including governors and legislatures, have declared martial law more frequently than the federal government. They may do so in response to violent civil unrest, natural disasters, or to break labor strikes. When martial law is declared, the military commander of an area assumes unlimited authority to make and enforce laws, suspending existing laws, civil authority, and the ordinary administration of justice.
In summary, while the US Constitution does not explicitly address martial law, the federal government's actions are bound by the Constitution even in states of emergency. The power to declare martial law resides primarily with state officials, who must still operate within the constraints of the Constitution and federal law.
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Examples of martial law in US history
Martial law has been declared more than 60 times in US history, mostly by state and local officials. The term "martial law" has no established definition, and the Supreme Court's limited precedent on the issue is old, vague, and inconsistent.
New Orleans, 1814
During the War of 1812, General Andrew Jackson imposed martial law in New Orleans. He encountered a diverse and divided populace, including Anglo-Americans, Creoles, free people of colour, and enslaved individuals. Jackson imposed strict curfews and travel restrictions on all residents and declared that anyone challenging his authority would be considered a spy or traitor, leading to mass arrests.
Nauvoo, Illinois, 1845
Tensions between the Utah Territory and the federal government strained in 1857 due to the influence of theodemocracy in Governor Brigham Young's semi-theocratic government, Utah's rejection of federal appointees, and acceptance of polygamy. Smith, who had declared martial law in Nauvoo, was arrested for treason against the state of Illinois. This led to a series of conflicts known as the Illinois Mormon War.
Coeur d'Alene, Idaho, 1892
In response to striking mineworkers blowing up a mill and shooting at strike-breaking workers, the governor declared martial law. Over 600 people were arrested, and the mine workers formed a new union, the Western Federation of Miners, while in prison.
San Francisco, 1906
Following the 1906 San Francisco earthquake, federal troops were stationed in the city and all dynamite was confiscated. The dynamite was used to destroy buildings in the path of fires to prevent them from spreading.
Colorado, 1914
The imposition of martial law climaxed during the Colorado Coalfield War, which had been building for decades. The conflict came to a head in Ludlow, Colorado, in 1913, and the proclamation of martial law by the governor resulted in the Ludlow Massacre.
Hawaii, 1941
Martial law was instituted in Hawaii following the Japanese attack on Pearl Harbor.
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Frequently asked questions
The Constitution does not explicitly grant the federal government or the president the power to declare martial law. The Supreme Court has never specifically ruled that the president or federal government can declare martial law. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances".
Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws.
Martial law has been declared more than 60 times in US history, mostly by state and local officials. Some examples include the Akron Riot of 1900, the 1900 Galveston hurricane, and the War of 1812, when General Andrew Jackson imposed martial law in New Orleans.
