Cecily Zamora
The US President can deploy the National Guard or the regular armed forces to suppress an insurrection in a state, but this is not the same as declaring martial law. While the term martial law lacks a precise definition, it generally refers to the temporary replacement of civil rule with military authority in a time of crisis. In the US, the President, Congress, or a local military commander may impose degrees of martial law under specific situations. However, the US Constitution does not explicitly grant the President the power to declare martial law, and some scholars argue that this power belongs to Congress. The Insurrection Act, which the President can invoke, is distinct from martial law as it is meant to enforce the law rather than replace it.
| Characteristics | Values |
|---|---|
| Can the President declare martial law? | No, the US Constitution does not grant the President the power to declare martial law. However, the President can deploy the National Guard or the military to suppress insurrection or enforce the laws of the United States. |
| Can Congress declare martial law? | Yes, Congress has the power to declare martial law, and has done so in the past, such as during the Civil War. |
| Can state officials declare martial law? | Yes, in almost all states, the governor has the power to impose martial law within the borders of the state. |
| What is martial law? | Martial law refers to when a region, state, city, or the whole country is placed under the control of a military body. During martial law, civil liberties may be suspended, and the military has virtually unlimited authority to govern the area. |
| When can martial law be declared? | Martial law is typically a last resort in times of extreme emergencies when civil rule has failed and military authority is needed to restore order. It has been declared in the US in times of war, natural disaster, and civic dispute. |
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What You'll Learn
Martial law and the US Constitution
The US Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when martial law can be declared. This is because declaring martial law is a "dramatic departure from normal practice in the United States", and could be easily abused as a political tool to control the population.
Martial law is a vague legal term for when military authorities take control of civil governance and law enforcement, and during which certain civil liberties may be suspended. It is intended to be reserved for times of extreme emergencies when existing civilian government and law enforcement have ceased to function or become ineffective.
While the US Constitution does not explicitly define when a president can declare martial law, it also does not specifically forbid it. Articles I and II of the Constitution give each branch some control over America's military forces. Article II, Section 2, lists the following presidential powers:
> "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
The commander-in-chief clause establishes that the president is in charge of the army, navy, and state militias. However, the Calling Forth Clause empowers Congress to "provide for", or regulate and control, the authority and procedures for "calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions".
The Posse Comitatus Act and other federal laws also regulate the domestic use of the military. For example, military personnel cannot be used in surveillance or undercover operations, and they may not be used as informants, investigators, or interrogators unless the investigation is a joint military-civilian operation in which the military has an interest in the case's outcome.
In the past, martial law has been declared nine times since World War II, and in five instances, it was designed to counter resistance to federal desegregation decrees in the South. For example, President Dwight D. Eisenhower invoked the Insurrection Act to enforce desegregation in Arkansas in 1957. In 1931, the governor of Texas declared martial law in parts of East Texas due to what he called an insurrection. In 1903, the Colorado governor declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners.
In conclusion, while the US Constitution does not explicitly grant the president the power to declare martial law, it does give them some control over America's military forces. However, the president cannot act against Congress's wishes in this area, and a unilateral declaration of martial law by the president would likely not survive a legal challenge.
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The Insurrection Act
The Act allows the president to deploy military forces inside the US to enforce laws when local authorities are unable to manage, or when rebellion, violence, or obstruction of law threatens the country's stability. It is the primary exception to the Posse Comitatus Act, which generally prohibits the US military from participating in civilian law enforcement activities. The Insurrection Act temporarily suspends this rule, allowing the president to deploy the military to assist civilian authorities in law enforcement.
The Act has been criticised for being overly broad and ripe for abuse, with some arguing that it fails to adequately define or limit when it may be used. The Act does not define key terms such as "insurrection," "rebellion," or "domestic violence," leaving the interpretation of these prerequisites for deployment up to the president's discretion. In the 1827 case of Martin v. Mott, the Supreme Court ruled that the decision to deploy the militia rests exclusively with the president. However, the Court has also suggested that it may step in if the president acts in bad faith, exceeds their authority, makes an obvious mistake, or acts in a way that is manifestly unauthorised by law.
While the Insurrection Act has been rarely used in modern times, it was considered during the George H.W. Bush administration in response to the 1992 Los Angeles riots. More recently, President Trump contemplated invoking the Act to address border issues and increase migrant arrests. However, he ultimately decided against it due to a decrease in migrant crossings and concerns about potential abuse of power.
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Martial law and civil liberties
Martial law is a dramatic departure from normal practice in the United States. It refers to a power that, in an emergency, allows the military to supersede civilian authorities and exercise jurisdiction over the population of a particular area. During martial law, the executive or military leaders may suspend certain civil liberties, including civil law, civil rights, habeas corpus, and the application or extension of military law or military justice to civilians. Typically, martial law is imposed during conflicts or in cases of occupations, where the absence of any other civil government provides for an unstable population.
In the United States, the president does not have the authority to declare martial law. While the Constitution's enumerated war powers give both Congress and the president some control over America's military forces, the balance of power established by these provisions favors Congress over the president. The Calling Forth Clause empowers Congress to regulate and control the authority and procedures for "calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions."
State officials, on the other hand, do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court. For example, in 1931, the governor of Texas declared martial law in parts of East Texas due to what he called an insurrection. The National Guard is unique in that it can be controlled by both state and federal leaders, and while it can be deployed to assist during emergencies, it does not create or enforce its own laws.
Although the president lacks the authority to declare martial law, they have ample authority under current law to deploy troops to assist civilian law enforcement. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided.
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Martial law and the military
Martial law is a dramatic departure from normal practice in the United States. Federal laws usually prevent the military from acting within the country. The US Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when it can be declared.
The US Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law. Articles I and II of the Constitution give each branch some control over America's military forces. Article II, Section 2, lists the following presidential powers:
> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
However, the Calling Forth Clause empowers Congress to regulate and control the authority and procedures for "calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."
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.
Martial law has been declared nine times since World War II, and in five instances, it was designed to counter resistance to federal desegregation decrees in the South. It has been imposed at least 68 times in limited, usually local areas of the United States. It was declared twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labour dispute, four times for natural disaster, and fifteen times for other reasons.
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Declaring martial law: the President vs Congress
The US President and Congress can impose martial law, but only under specific circumstances. Martial law refers to the temporary placement of a region, state, city, or country under the control of a military body. It is considered a "dramatic departure from normal practice in the United States".
In the US, martial law has been imposed in several notable cases, including during times of war, natural disaster, and civic dispute. For instance, in 1906, after an earthquake, federal troops were pressed into martial law service in San Francisco. In 1914, the imposition of martial law climaxed during the Colorado Coalfield War, resulting in the Ludlow Massacre. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.
The US Constitution does not explicitly grant the President the power to declare martial law. However, the President is the Commander-in-Chief of the Army, Navy, and State Militias, and can deploy the National Guard or regular armed forces to suppress an insurrection in a state, if requested by the state's legislature or governor. The Insurrection Act gives the President extensive authority to deploy the military domestically to perform law enforcement functions, which may feel like martial law, but is not the same.
Congress has the power to declare war and to raise, support, and govern armies. This power necessarily extends to all legislation essential to the vigorous and successful prosecution of war. However, it does not include powers that interfere with the command of the forces and the conduct of campaigns, as those powers belong to the President as Commander-in-Chief.
State officials may also declare martial law, but their actions under the declaration must abide by the US Constitution.
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Frequently asked questions
No, the President cannot impose martial law. The Constitution does not grant the President the power to declare martial law.
Martial law is a temporary replacement of civil rule with military authority in a time of crisis. It involves the suspension of civil liberties, such as freedom of movement and the right to a trial before imprisonment.
Yes, martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. Notable instances include the Great Chicago Fire of 1871, the Colorado Coalfield War in 1914, and in the South during the Civil Rights Movement.
The Insurrection Act allows the President to deploy the military to assist civilian authorities with law enforcement activities. While it gives the President extensive authority to use the military domestically, it is not the same as declaring martial law.
Congress has the power to declare war and pass legislation essential to the prosecution of war. However, the Supreme Court has never explicitly stated whether Congress has the authority to declare martial law. The lack of a clear definition of martial law and the limited, inconsistent precedent further complicate this question.
