Anaya Nolan
Martial law is a controversial topic in the United States, with a history of debate and tension surrounding its implementation. While there is no universal definition, it generally refers to the use of the military for law enforcement, and in some cases, the complete replacement of a nation's normal legal system. In the context of the PA National Guard, the authority to declare martial law rests with the state governor, who can mobilize National Guard troops to address civil unrest or natural disasters. However, the Insurrection Act of 1807, which is the primary exception to the Posse Comitatus Act, grants the President the power to federalize National Guard units and deploy them for domestic purposes without state consent. This has raised concerns among state officials and lawmakers about the potential usurpation of their roles and the broad authority granted to the President.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | State officials, the President (with the Insurrection Act) |
| Who cannot declare martial law? | The President (without the Insurrection Act) |
| Who enforces martial law? | The military, including federal armed forces and National Guard troops |
| What does it mean? | Military takes over the role of civilian government in an emergency |
| What is it not? | Military assisting civilian authorities |
| Has martial law ever been declared in the US? | Yes, about 68 times |
| When was it last declared? | 1963 |
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What You'll Learn
The US President cannot declare martial law
The US Constitution does not explicitly grant the US President the power to declare martial law. While the US President can call on the military to help local governments after a natural disaster, this is not the same as implementing martial law. Martial law is considered to be the use of military personnel to dramatically assist or completely replace a nation's normal legal system in times of emergency.
The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities. This Act strengthens the separation of powers between Congress and the President. The Insurrection Act of 1807 allows the President to deploy military forces to suppress rebellions within the US and to help local law enforcement deal with domestic violence. However, the use of active-duty troops for law enforcement within the US has faced backlash and legal challenges.
While the US President can use the military to some degree, it is the state governors who have more frequently declared martial law. Nearly every state constitution allows the governor or legislature to impose martial law within the state's borders. The US President does not have this power and needs congressional authorization to impose martial law in a civilian area.
In 2006, the John Warner National Defense Authorization Act gave the US President the power to declare martial law and take command of the National Guard units of each state without the consent of state governors. However, this expansion of powers faced opposition, and in 2008, the Enforcement of the Laws to Restore Public Order law was repealed, reverting to the previous Insurrection Act. As of 2020, the Insurrection Act of 1807 limits the US President's ability to federalize National Guard troops for martial law purposes.
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State governors can declare martial law
In the United States, state governors can declare martial law within the borders of their state. This has happened at least 68 times in limited, usually local areas of the country. Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. It is typically a last resort, as it could be easily abused as a political tool to control the population, especially political dissenters.
State governors have historically declared martial law during times of labor unrest, civil unrest, and natural disasters. For example, in 1871, Chicago mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city in response to the Great Chicago Fire. Similarly, in 1906, following an earthquake, federal troops were pressed into martial law service in San Francisco. In Coeur d'Alene, Idaho, in 1892, the governor declared martial law after striking mineworkers blew up a mill and shot at strike-breaking workers. More recently, in 1963, Farmer-Labor governor Olson declared martial law and mobilized four thousand National Guardsmen of the 34th Infantry following the deaths of protesters at the hands of the police.
The power of state governors to declare martial law is derived from either the state constitution or the state legislature. While the U.S. Constitution does not explicitly define when a president can declare martial law, it also does not specifically forbid it. The Insurrection Act of 1807, for example, allows the president to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence to enforce federal laws and maintain public order. This Act has been invoked several times, but martial law was not declared in these instances.
The National Guard is a unique entity controlled by both state and federal leaders, and they can be deployed at any time to assist in enforcing existing laws while respecting the civil rights of all civilians. However, the Guard does not create or enforce its laws.
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The National Guard can enforce martial law
Historically, state governors are the ones most likely to declare martial law, typically in cities and counties within their jurisdictions. For example, in 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the influence of organized crime gangs. The National Guard assumed law enforcement duties, shut down gang-controlled establishments, and oversaw lawful elections. In another instance, the Colorado National Guard was called in to quell strikers during the Colorado Coalfield War in 1914.
The Insurrection Act of 1807 is the primary exception to the Posse Comitatus Act, which generally prohibits the use of federal military forces in civilian law enforcement. The Insurrection Act allows the President to deploy troops to suppress a domestic rebellion and enforce federal law, but these troops are intended to supplement, not replace, civilian authorities.
In 2006, the John Warner National Defense Authorization Act was passed, giving the President the power to declare martial law and take command of National Guard units of each state without state governors' consent. However, this expansion of power was short-lived, as it was repealed in 2008 due to opposition from Congress, state governors, and law enforcement. As of 2020, the Insurrection Act of 1807 still limits the President's ability to federalize National Guard troops for martial law purposes.
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The National Guard can assume law enforcement duties
The National Guard has been used in law enforcement capacities numerous times throughout history, including in the aftermath of the assassination of Dr. Martin Luther King, Jr., when National Guardsmen patrolled the streets of Chicago following rioting and arson. In 1900, the Colorado National Guard was called in to break a peaceful strike by the Western Federation of Miners, resulting in mass arrests of striking workers. In 1963, President John F. Kennedy invoked the Insurrection Act to send federal troops to Mississippi and Alabama to enforce civil rights laws.
The Insurrection Act of 1807 is the primary exception to the Posse Comitatus Act, which generally forbids the US military, including the National Guard, from participating in civilian law enforcement. The Insurrection Act permits the military to assist civilian authorities, not replace them. The Act has been invoked many times throughout history, including by Presidents George Washington, John Adams, Abraham Lincoln, and Ulysses Grant.
While the National Guard can assume law enforcement duties, declaring martial law is a different matter. Martial law refers to the use of the military to dramatically assist or completely replace a nation's normal legal system in times of emergency. It is generally understood as a power that allows the military to take over the role of civilian government in an emergency. Under martial law, military leaders assume executive, legislative, and judicial powers, and civilians who commit crimes or violate military orders may face military tribunals if civilian courts are unavailable.
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The Insurrection Act of 1807 and its amendments
The Insurrection Act of 1807 is a United States federal law that empowers the president to deploy the military and federalize National Guard troops for domestic law enforcement. This act is an exception to the Posse Comitatus Act, which generally prohibits the military's involvement in civilian law enforcement. The Insurrection Act has been invoked in response to crises, such as civil unrest, insurrection, and the enforcement of federally mandated desegregation.
The Insurrection Act of 1807 has been amended several times since its enactment. In 1861, a new section was added to address potential unrest after the Civil War, allowing the federal government to use the National Guard and armed forces against the will of the state government in cases of "rebellion against the authority of the government of the United States." In 1871, the Third Enforcement Act revised the act to protect Black Americans from attacks by the Ku Klux Klan, invoking the Equal Protection Clause of the Fourteenth Amendment.
In 2006, the George W. Bush administration amended the act to permit military intervention without state consent in emergencies hindering law enforcement. This amendment faced significant opposition and was repealed in 2008. In 2016, Public Law 114-328 was amended to include Guam and the US Virgin Islands under Ch. 13 jurisdiction, which relates to the use of militia and armed forces to enforce federal authority.
The Insurrection Act has been invoked at least 30 times throughout history, with the most recent invocation in 1992 by President George H. W. Bush during the Rodney King protests and riots in Los Angeles. In recent years, there has been a push for reform and clarification of the act's vague language, which grants significant power to the president to deploy the military domestically.
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Frequently asked questions
No, the National Guard cannot declare martial law. The National Guard can be deployed by the President under the Insurrection Act of 1807, which permits the military to assist civilian authorities, but not replace them.
In the US, state governors have declared martial law in response to violent civil unrest or natural disasters. The President can also declare martial law and take command of the National Guard units of each state without the consent of state governors, as per the John Warner National Defense Authorization Act for Fiscal Year 2007.
Martial law refers to the use of the military for law enforcement. It is generally understood as the power that allows the military to take over the role of civilian government in an emergency.
