Martial Law: Federal Government's Selective Enforcement?

The concept of martial law and its implementation in the United States is a complex and contentious issue. While the Constitution does not explicitly define or grant authority to declare martial law, it has been invoked by state officials and governors more frequently than the federal government. Martial law refers to the temporary substitution of civilian governance with military authority, typically during emergencies such as war, rebellion, or natural disasters. Despite the lack of a clear definition, it has been imposed at least 68 times in limited areas of the United States, with varying degrees of enforcement. The federal government's ability to selectively enforce martial law is influenced by the Posse Comitatus Act, which prevents the military from engaging in civilian law enforcement without congressional approval, and the Insurrection Act, which allows the president to deploy troops to enforce laws and suppress rebellions. The Supreme Court has also played a role in interpreting and limiting the use of martial law, but the exact scope and limits remain ambiguous, leaving room for potential executive overreach.

Who can declare martial law?

The US Constitution does not define martial law and does not specify who can declare it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances". The Posse Comitatus Act and the Insurrection Act of 1807 are two federal laws that impact the president's ability to declare martial law. The Posse Comitatus Act prevents the US military from participating in civilian law enforcement activities, while the Insurrection Act allows the president to deploy the military to deal with rebellions and enforce the law in specific situations.

State officials, particularly state governors, have declared martial law more frequently than the federal government. Governors have the power to impose martial law within their state borders. In the past, state governors have declared martial law in response to violent civil unrest, labour strikes, and natural disasters.

While the US Constitution does not explicitly grant the president the authority to declare martial law, several presidents throughout history have done so. The Supreme Court has never explicitly held that the president can declare martial law, and some scholars argue that the president needs congressional authorization to impose it in civilian areas. However, in certain circumstances, such as insurrection or the need to enforce federal laws, the president may deploy the National Guard or the armed forces with or without the request of the affected state.

In summary, while the US Constitution does not provide a clear answer, the power to declare martial law rests with the president, state officials, and state governors, with varying degrees of authority and constraints.

What is martial law?

The term "martial law" often refers to the use of the military for law enforcement. However, simply calling on federal or state military members to assist during times of natural emergency or civil unrest is not necessarily the same as implementing 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. It 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 is justified when civilian authority has ceased to function, is completely absent, or has become ineffective.

In the United States, 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 labor dispute, four times for natural disaster, and fifteen times for other reasons.

The Constitution of the United States does not define martial law and does not specify who can declare it. The Supreme Court has never explicitly stated whether the federal government has the power to declare martial law, and if the president could do so unilaterally or with congressional authorization. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances." Some scholars believe the president has the executive power to declare martial law, while others believe congressional authorization is necessary.

The Insurrection Act

The Act does not define "insurrection," "rebellion," "domestic violence," or any other key terms used in setting forth the prerequisites for deployment. The Supreme Court decided in 1827 that the question of whether these prerequisites have been met is for the president alone to decide. However, while this precedent gives the president significant power to decide when and where to deploy the military, the Supreme Court clarified in 1932 that courts may still review the lawfulness of the military's actions once deployed.

The Posse Comitatus Act

There are statutory exceptions to the Posse Comitatus Act, including the Insurrection Act, which allows the president to deploy the military to suppress rebellions, enforce federal law, and protect civil rights when a state government is unable or unwilling to do so. Despite these exceptions, the act still serves as a crucial limitation on the use of military power in civilian law enforcement, reinforcing the separation of powers between Congress and the president.

Martial law in practice

Martial law has been declared over 60 times in the history of the United States, with state governments and governors declaring it far more often than the federal government. It involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, insurrection, civil unrest, or natural disaster.

During the West Virginia Coal Wars (1920–1921), martial law was declared in West Virginia at the request of Governor Cornwell, who dispatched federal troops to deal with striking miners. The army jailed union miners without trial, and anyone challenging the army's authority was considered a spy or traitor. Similarly, in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. The Colorado National Guard conducted mass arrests of striking workers.

In 1942, Hawaii was under martial law, with the military setting up a military government that was not bound by the Constitution. In June 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the influence of organized crime gangs. The National Guard took over law enforcement, shut down gang-controlled establishments, and oversaw elections.

In 1814, during the War of 1812, General Andrew Jackson imposed martial law in New Orleans, imposing strict curfews and travel restrictions on all residents. He imprisoned those who challenged his authority, including judges, and his rules remained in place for several months after the war ended.

In 1900, state officials declared martial law in response to the Akron Riot and the Galveston hurricane. However, it has been used far more often to break labor strikes, such as during the Boston Tea Party, when the British Parliament effectively placed Boston under martial law.

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