Kara Sears
Martial law is a dramatic departure from normal practice in the United States, where the military assumes temporary control over various civilian authorities. In the US, martial law has been used in a limited number of circumstances, such as during the Colorado Coalfield War, the 1906 San Francisco earthquake, and the 1920 Lexington riots. While the US President and Congress have the power to impose martial law, the President cannot declare it unilaterally. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US President, Congress, a State governor, or in limited emergencies, by a local military commander. |
| Who can deploy the military? | The US President, with or without the request of the state legislature or governor, can deploy the National Guard or regular armed forces. |
| Who can impose martial law? | Both the US President and US Congress have the power, within certain constraints, to impose martial law. In nearly every state, the governor has the power to impose martial law within the borders of the state. |
| 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 during martial law? | The normal American law enforcement and legal system is replaced by a stricter set of laws and punishments that are completely controlled by the military or executive branch of the government. The normal checks and balances built into the Constitution are suspended. |
| What is the legal basis for martial law? | The US Constitution does not explicitly grant the power to declare martial law, but Articles I and II give the legislative and executive branches some control over America's military forces. The Insurrection Act and the Posse Comitatus Act are also used in emergency situations. |
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What You'll Learn
Who can declare martial law?
In the United States, the power to declare martial law varies across different levels of government. On a national level, the US President and Congress can impose martial law, as they can be in charge of the militia. However, the US Constitution does not explicitly define when a president can declare martial law, and neither does it grant the president the power to do so. There is also no federal law specifying when martial law can be declared.
At the state level, in nearly every state, the governor has the power to impose martial law within the borders of the state. This power is given to them by either the state constitution or the state legislature. State governors have historically declared martial law during times of labor unrest, although this has not occurred recently.
At the local level, in limited emergencies, a local military commander may impose degrees of martial law under specific situations.
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What happens during martial law?
Martial law is the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, civil unrest, or natural disaster. It can be declared by a proclamation of the president or a state governor, but such a formal proclamation is not necessary.
During martial law, the normal American law enforcement and legal system are replaced by a stricter set of laws and punishments that are completely controlled by the military or executive branch of the government. The normal checks and balances built into the Constitution are suspended, and standard civil liberties may be suspended for as long as martial law continues. Martial law suspends all existing laws, as well as civil authority and the ordinary administration of justice. The military commander of an area or country has unlimited authority to make and enforce laws. Curfews are also typically imposed, and civilians may be tried by military tribunals.
In the United States, martial law has been used in a limited number of circumstances, such as during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during riots, such as the Omaha race riot of 1919. It has also been used to quell strikes, such as the Colorado Coalfield War and the Minneapolis general strike in 1934.
While the president, Congress, or a local military commander may impose degrees of martial law under specific situations, the president does not have the authority to declare it. The Insurrection Act and Title 32 leave it almost entirely up to the president to decide when and where to use US armed forces at home against Americans, but this is not the same as declaring martial law.
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Martial law and the suspension of habeas corpus
Martial law in the United States refers to times 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, as they can be in charge of the militia. In nearly every state, the governor also has the power to impose martial law within the borders of the state.
Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked during 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.
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 for lawful imprisonment or the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is related to the imposition of martial law. Article 1, Section 9 of 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." The suspension of habeas corpus allows the government to detain and hold individuals without charge, but it does not imply any unusual role for the armed forces. While a declaration of martial law may be accompanied by a suspension of habeas corpus, they are distinct concepts.
The US President does not have the authority to declare martial law. However, the President has extensive authority to deploy the military domestically to perform law enforcement functions. The Insurrection Act allows the President to deploy the National Guard or the regular armed forces to suppress an insurrection in a state if requested by the state's legislature or governor. The President can also deploy troops without a request from the affected state to enforce US laws or suppress rebellion.
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The Insurrection Act and the Posse Comitatus Act
The Posse Comitatus Act, passed in 1878, generally prevents the president from using the military as a domestic police force. It bars federal troops from participating in civilian law enforcement except when expressly authorized by law. The Act embodies an American tradition that views military interference in civilian affairs as a threat to both democracy and personal liberty. The Posse Comitatus Act does not, however, restrict state National Guard forces from acting in a law enforcement capacity at the command of a governor or at the request of another state's governor.
There are many statutory exceptions to the Posse Comitatus Act, the most notable of which is the Insurrection Act. The Insurrection Act of 1807 grants the president emergency powers to deploy US troops domestically against US citizens. It allows the president to deploy the military to assist civilian authorities with law enforcement. This could involve soldiers enforcing a federal court order or suppressing an uprising against the government. The Insurrection Act does not, however, authorize martial law.
The Insurrection Act is considered vague and in need of reform. It fails to define key terms such as "insurrection" and "rebellion", giving the president significant power to decide when and where to deploy the military. In the summer of 2020, President Trump deployed the military to police protests against law enforcement brutality and racism, evading the political costs of invoking the Insurrection Act.
The New York City Bar Association has expressed concern about the potential for misuse of the Insurrection Act and Posse Comitatus Act, particularly in the context of civil unrest and immigration enforcement. They have called on Congress to reform these laws and clarify their purpose to prevent abuse of power by the Executive Branch.
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Martial law in US history
Martial law in the United States refers to instances in which a region, state, city, or the entire nation was placed under the control of a military body. The US President, US Congress, and nearly every state governor have the power to impose martial law within certain constraints.
Historically, martial law has been declared in the US in a limited number of circumstances, such as during the Battle of New Orleans, after natural disasters like the Great Chicago Fire of 1871 and the 1906 San Francisco earthquake, and during riots and civil unrest, including the Omaha race riot of 1919, the 1920 Lexington riots, and the Civil Rights Movement in 1963. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, suspending habeas corpus and civil rights.
During the 19th century, the Supreme Court suggested that a federal martial law power was "implied in sovereignty" or justified by "necessity," but it has never explicitly provided a legal basis for martial law. The Court has also never conclusively stated whether the president can unilaterally declare martial law or if Congress's authorization is required.
On a state level, martial law has been declared by governors and city mayors, sometimes in conjunction with generals within states' National Guard forces. For example, in the 1930s, Oklahoma Governor William Murray declared martial law numerous times, and in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike, leading to mass arrests and the detention of striking workers.
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Frequently asked questions
In the United States, martial law may be declared by the president, a state governor, or, in limited emergencies, by a local military commander. Nearly every state has a constitutional provision authorizing the government to impose martial law. However, the president lacks the authority to declare it without a request from the state.
During martial law, the normal American law enforcement and legal system is replaced by a stricter set of laws and punishments that are completely controlled by the military or executive branch of the government. The normal checks and balances system built into the Constitution is suspended, and the military commander has virtually unlimited authority to govern an area.
Yes, martial law has been declared several times in the United States, including during the Civil War, the Whiskey Rebellion, and in New Orleans during the Battle of New Orleans. More recently, in 1934, Minnesota Governor Floyd B. Olson placed the city of Minneapolis under martial law due to escalating violence.
