Anaya Nolan
The question of whether a new president can impose martial law is a complex one. While the U.S. Constitution does not explicitly define or grant the president the power to declare martial law, it also does not specifically forbid it. Throughout history, several presidents have imposed or approved declarations of martial law, often during times of extreme emergencies, insurrection, or natural disasters. The Supreme Court has also held that states can declare martial law, but it has never explicitly ruled that the president can. The Insurrection Act further blurs the line by allowing the president to deploy military forces domestically to enforce federal laws and maintain order. However, the authority to declare martial law may ultimately rest with Congress, and the president's ability to act may depend on their alignment with congressional will.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The U.S. Constitution does not define martial law and does not specify who can declare it. However, several presidents and many state governors have imposed or approved declarations of martial law throughout American history. |
| Is the president authorized to declare martial law? | The Constitution does not explicitly authorize or forbid the president from declaring martial law. The Supreme Court has also never explicitly held that the president can. Therefore, it is unclear whether the president can legally declare martial law. |
| Instances of martial law in U.S. history | Martial law has been declared over 60 times in U.S. history, with the first instance occurring in 1814 by General Andrew Jackson in New Orleans during the War of 1812. Other instances include President Franklin D. Roosevelt in Hawaii after the attack on Pearl Harbor, and President Abraham Lincoln during the Civil War (although this was Congressionally-imposed). |
| Martial law and the military | Martial law refers to instances when a nation's armed forces assume the governance of an area, typically when civilian authority has ceased to function or is ineffective. It gives the military commander virtually unlimited authority to govern an area, including the power to suspend local laws, civil authority, and local judiciaries. |
| The Insurrection Act | The Insurrection Act is a federal law that allows the president to deploy the military domestically to suppress insurrections, rebellions, or domestic violence and enforce federal laws. This has been invoked multiple times in history, including by President Dwight D. Eisenhower to enforce desegregation in Arkansas in 1957. |
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What You'll Learn
Martial law history in the US
Martial law in the United States refers to the temporary substitution of military authority for civilian rule. It is usually invoked during times of war, rebellion, or natural disaster. Martial law has been declared at least 68 times in the US, and while the president, Congress, or a local military commander may impose degrees of martial law under specific situations, the president alone cannot declare it.
On September 15, 1863, President Abraham Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War. Lincoln's proclamation was later challenged and deemed unconstitutional by the Supreme Court. In the 1900s, martial law was declared after the 1906 San Francisco earthquake, and during riots and strikes, such as the Omaha race riot of 1919, the 1920 Lexington riots, and the 1934 West Coast waterfront strike.
In the 1930s, Oklahoma Governor William "Alfalfa Bill" Murray declared martial law at least six times, and possibly more than 30 times, during his tenure. In one instance, he declared martial law in the Oklahoma oil fields during a nonviolent dispute between the state government and oil producers over oil production limits. In another, he declared martial law in Sterling, Texas, where the Supreme Court enjoined the state from using martial law to enforce oil production regulations.
In the 20th century, martial law was used to counter resistance to federal desegregation decrees in the South. More recently, in 1968, National Guardsmen patrolled the streets of Chicago following rioting and arson after the assassination of Dr. Martin Luther King, Jr.
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Can the president declare martial law?
The US Constitution does not define martial law and does not specify who can impose it. 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. Others believe the president needs congressional authorization to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its action.
The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military "from participating in civilian law enforcement activities". It strengthened the separation of powers between Congress and the president. The Insurrection Act of 1807 is the main exception to the Posse Comitatus Act. It allows the president to deploy military forces inside the US to suppress rebellion or enforce the law in certain situations.
According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States". Federal laws usually prevent the military from acting within the country. Although the president can call the military into action to help local governments after a natural disaster, its help is usually limited. 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. In short, it gives the military commander virtually unlimited authority to govern an area. The Constitution does not explicitly grant the president the power to declare martial law.
There have been several instances of the use of the military within the US, such as during the Whiskey Rebellion, President Lincoln's suspension of habeas corpus in 1861 to arrest one-third of the Maryland state assembly, and in the South during the Civil Rights Movement. However, these acts are not considered a declaration of martial law. On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state.
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State governor's power to declare martial law
In the United States, martial law is a legal term for when military authorities take control of civil governance and law enforcement. It is usually invoked in times of war, rebellion, or natural disaster, and is intended to be reserved for times of extreme emergency when existing civilian government and law enforcement have ceased to function or become ineffective. The United States Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when it can be declared.
Nearly every state has a constitutional provision authorizing the government to impose martial law, and 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 officials have sometimes declared martial law in response to violent civil unrest or natural disasters, but far more often, they have 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.
The power of martial law, once held to be nearly absolute, has limitations. For example, civilians may not be tried by military tribunals as long as civilian courts are functional. The direct relation test examines whether actions taken are directly related to the purposes of martial law. In other words, at least at the state level, actions taken during martial law are not entirely immune from judicial review.
It is important to note that calling in the National Guard is not the same as declaring martial law. Both federal and state leaders can call in the National Guard to help during emergencies, but the Guard does not create or enforce its own laws.
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Martial law and the suspension of habeas corpus
Martial law in the United States refers to instances in history when a region, state, city, or the entire country was placed under the control of a military body. Both the US President and the US Congress have the power to impose martial law, as can governors in nearly every state. Throughout history, martial law has been imposed at least 68 times, mostly in limited, local areas.
The suspension of habeas corpus has been implemented several times throughout US history. One notable example is during the Civil War, when President Abraham Lincoln suspended habeas corpus and imposed martial law in Kentucky, Maryland, and Missouri. Lincoln's suspension of habeas corpus was controversial and provoked widespread opposition, but it was used to combat malignant opposition to the war. Lincoln's actions were later ruled unconstitutional by the Supreme Court in Ex parte Milligan (1866), which decided that Congress's suspension of the writ did not empower the President to try to convict citizens before military tribunals where civil courts were operational.
Another example of the suspension of habeas corpus occurred in 1905, when Governor-General Luke Edward Wright of the Philippines suspended the writ at the request of the Philippine Commission. This suspension gave rise to the United States Supreme Court case Fisher v. Baker (1906). Additionally, in 1942, President Franklin D. Roosevelt set up a secret military tribunal that convicted eight German saboteurs, including two US citizens, of entering the United States to attack its civil infrastructure. The US Supreme Court decided that the writ of habeas corpus did not apply in this case due to the saboteurs' status as unlawful combatants.
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Martial law and the deployment of the military
The United States Constitution does not define martial law and does not specify who can declare it. However, throughout American history, several presidents and many state governors have imposed or approved declarations of martial law. The Supreme Court has held that states can declare martial law, but it has never specifically held that the president can. Therefore, it is unclear whether the president can legally declare martial law.
Martial law refers to instances when a nation's armed forces assume the governance of an area. Officials most often impose martial law when civilian authority over an area has stopped functioning, such as in the case of an insurrection or natural disaster. When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended, and the commanding officer substitutes temporary laws and military tribunals. This gives the military commander virtually unlimited authority to govern an area.
While the president may lack the authority to declare martial law, they have extensive authority to deploy the military domestically to perform law enforcement functions. The Insurrection Act and possibly Title 32 leave it almost entirely up to the president to decide when and where to use US armed forces at home. The Posse Comitatus Act, enacted in 1878, prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws.
The domestic deployment of the federal military is rare and has historically been reserved for genuine emergencies, such as war, armed rebellion, or enforcing federal laws if civilian agencies and courts are not functioning. For example, in 1958, President Dwight D. Eisenhower invoked the Insurrection Act and deployed federal troops to Arkansas to enforce the Supreme Court's Brown v. Board decision and protect the Little Rock Nine against a violent mob. In another instance, President George W. Bush placed foreign detainees in a prison in Guantanamo Bay, Cuba, outside of US court jurisdiction, which was later overruled by the Supreme Court.
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Frequently asked questions
The US Constitution does not define martial law and does not specify whether or not the president has the authority to declare it. However, several presidents throughout history have imposed or approved declarations of martial law.
Martial law refers to instances when a nation's armed forces assume the governance of an area. Officials impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster.
Yes, the president can deploy the military domestically without declaring martial law. The Insurrection Act is a federal law that allows the president to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence.
