Cecily Zamora
The question of whether the president can approve martial law is a complex one, with no clear answer. While the Constitution of the United States does not define martial law or specify who can declare it, it is generally understood that both the president and Congress have the power to impose martial law within certain constraints. This is based on the interpretation that both can be in charge of the militia. However, the Supreme Court has never explicitly held that the president can declare martial law, and there is ambiguity around whether congressional authorization is required for the president to impose it. Despite this, several presidents throughout history have declared or approved martial law, and it has been imposed over 60 times in the United States.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The Constitution of the United States 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. |
| Can the president declare martial law? | The president lacks the authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. |
| What is martial law? | Martial law refers to instances when a nation's armed forces step in and assume the governance of an area. Officials most often impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster. |
| Who has declared martial law in the past? | Generals have declared martial law more often than the president. For example, in 1920, US Army Gen. Francis C. Marshall imposed martial law on Lexington, Kentucky. The federal government has also declared martial law, such as in Hawaii after the Japanese attack on Pearl Harbor in 1941. |
| What are the restrictions of martial law? | The restrictions of martial law were defined in a 2015 law called "On the Legal Regime of Martial Law". |
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What You'll Learn
- The US Constitution does not define martial law
- The Supreme Court has not explicitly held that the president can declare martial law
- Martial law has been declared at least 68 times in the US
- US presidents have imposed or approved declarations of martial law throughout history
- Congress may be the only branch that can legally declare martial law
The US Constitution does not define martial law
The power to declare martial law has been exercised by several presidents and many state governors throughout American history. Notably, President Franklin D. Roosevelt approved Governor Poindexter's declaration of martial law in Hawaii following the Japanese attack on Pearl Harbor in 1941. This led to three years of absolute military rule in the islands, with the military continuing to control labour even after martial law was lifted in October 1944.
In another instance, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri in 1863 during the Civil War. Additionally, in 1844, Congress symbolically endorsed President Jackson's use of martial law in Rhode Island, where a group of citizens led by Thomas Dorr resorted to violence to assert their claimed authority under a new state constitution.
Despite these historical precedents, the modern interpretation of the Constitution grants authority over the domestic use of the military to the legislative branch, not the executive branch. Therefore, the president cannot act against Congress's wishes in this area. Furthermore, the Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. These factors strongly suggest that a unilateral presidential declaration of martial law would not survive a legal challenge.
While the president has ample authority under current law to deploy troops to assist civilian law enforcement, the domestic role of the US military is primarily limited to providing support rather than assuming control.
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The Supreme Court has not explicitly held that the president can declare martial law
The United States Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when martial law can be declared. Martial law is a vague legal term for when military authorities take control of civil governance and law enforcement. 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.
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. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials 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.
While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement." Martial law may be declared by both the president and by Congress. In nearly every state, the governor has the power to impose martial law within the borders of the state.
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Martial law has been declared at least 68 times in the US
The United States Constitution does not define martial law and does not specify who can declare it. However, several presidents and state governors have imposed or approved declarations of martial law throughout American history.
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, such as during an insurrection or natural disaster. The US has a long history of using martial law, with at least 68 declarations of martial law across US history.
The federal government has used martial law far less frequently than the states, imposing it only a few times since the Reconstruction era. Generals have declared it more often than the president. For example, in 1920, US Army General Francis C. Marshall imposed martial law on Lexington, Kentucky, to suppress a lynch mob attempting to storm the courthouse.
The Supreme Court has held that states can declare martial law, but it has never specifically held that the president can. Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.
There have been many instances of the use of the military within US borders, 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 do not amount to a declaration of martial law.
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US presidents have imposed or approved declarations of martial law throughout history
The US Constitution does not define martial law and does not specify who can declare it. However, several US presidents have imposed or approved declarations of martial law throughout history.
The Supreme Court has held that states can declare martial law, but it has never specifically held that the president can. Thus, it is unclear whether the president can legally declare martial law. Nevertheless, several presidents have done so in the past. On September 15, 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. The authorizing act allowed Lincoln to suspend habeas corpus and civil rights throughout the entire United States. Lincoln's proclamation was challenged in Ex parte Milligan, 71 US 2 (1866), and the Supreme Court ruled that his imposition of martial law was unconstitutional in areas where local courts were still operational.
In 1941, the federal government declared martial law in Hawaii following the Japanese attack on Pearl Harbor, which initiated three years of absolute military rule in the islands. President Franklin D. Roosevelt approved this declaration and later used his commander-in-chief powers to intern Japanese Americans in camps along the West Coast. Martial law in Hawaii led to many lawsuits, including Duncan v. Kahanamoku (1946), which reviewed the military tribunal convictions of Hawaiian civilians.
In 1812, General Andrew Jackson imposed martial law in New Orleans, citing concerns about potential disloyalty and panic among residents. He imposed strict curfews and travel restrictions on all residents and declared that anyone challenging his authority would be considered a spy or traitor, leading to mass arrests.
In 1844, President Jackson asked Congress to pass a bill refunding him for expenses incurred during his imposition of martial law in Rhode Island. The bill's passage symbolically endorsed Jackson's use of martial law. Rhode Island's legislature declared martial law in response to "Dorr's War," a movement led by Thomas Dorr to adopt a new constitution and declare a new state government. The Supreme Court ultimately approved the state's declaration of martial law in Luther v.
In addition, Congress has amended the Insurrection Act of 1807, granting the president new powers to use the military for domestic disturbances, terrorism, and insurrection. However, some scholars argue that the president needs congressional authorization to impose martial law in civilian areas, and Congress may be the only governmental branch that can legally declare it.
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Congress may be the only branch that can legally declare martial law
The US Constitution does not define martial law and does not specify who can declare it. However, the modern interpretation of the Constitution allows the president and state officials to declare "degrees of martial law in specific circumstances".
Despite this, the president lacks the authority to unilaterally declare martial law. The Constitution and federal law do not explicitly authorize the president to declare martial law, and the Supreme Court has never specifically held that the president can. Therefore, Congress may be the only governmental branch that can legally declare martial law.
The Supreme Court has implied that the federal government can declare martial law but has never explicitly stated this. When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could declare it unilaterally or if Congress would first need to authorize it. The Court's statements on these questions have been inconsistent.
While the president is the Commander-in-Chief of the US military and has the power to grant reprieves and pardons for offenses against the US, the Supreme Court has held that martial law can only be validly and constitutionally established by the supreme political authority in wartime. This suggests that Congress, as the legislative branch, may be the only branch that can legally declare martial law.
Although the president cannot unilaterally declare martial law, several presidents throughout history have done so. For example, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri in 1863. However, the Supreme Court ruled that Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session.
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Frequently asked questions
The president can approve martial law, but it is unclear if they can declare it without congressional authorization. The Constitution does not define martial law and does not specify who can declare it. However, several presidents have declared or approved declarations of martial law throughout American history.
Yes, martial law has been declared at least 68 times in the United States. Generals have declared it more often than the president. The federal government has imposed it only a few times since the end of Reconstruction.
During martial law, a nation's armed forces step in and assume the governance of an area. Officials most often impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster.
