Gavin Howe
The question of whether the president can declare martial law is a complex one, with no clear answer. The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents have imposed or approved declarations of martial law throughout history, neither the Constitution nor federal law explicitly grants the president the authority to do so. The Supreme Court has also never explicitly held that the president can declare martial law. However, some scholars argue that the president has the executive power to declare martial law, while others believe congressional authorization is required. The Insurrection Act, which allows the president to deploy troops to enforce the law, is often associated with martial law but does not equate to its declaration.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The Constitution does not define who can declare martial law. However, several presidents and state governors have imposed or approved declarations of martial law. |
| Is the president authorized to declare martial law? | The Constitution does not explicitly authorize the president to declare martial law. The Supreme Court has never explicitly held that the president can declare martial law. Some scholars believe the president has executive power to declare martial law, while others believe the president needs congressional authorization. |
| Instances of martial law in U.S. history | Martial law has been declared over 60 times in U.S. history. Notable instances include the Whiskey Rebellion, President Lincoln's suspension of habeas corpus, and in response to the Great Chicago Fire of 1871. |
| Conditions for declaring martial law | Martial law can be imposed when civil rule fails and is temporarily replaced by military authority in a time of crisis, such as war, natural disaster, or civic dispute. |
| Legal basis for martial law | The legal basis for martial law is unclear, with inconsistent statements from the Supreme Court. The Court has implied that the federal government can declare it but has never explicitly stated this. |
| Powers during martial law | Under martial law, certain civil liberties may be suspended, such as freedom of movement, freedom of association, and the right to a trial before imprisonment. The military's authority under martial law is considered virtually unlimited. |
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What You'll Learn
Martial law and the right to habeas corpus
The US Constitution does not define martial law, nor does it specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never explicitly held that the president can. Therefore, it is uncertain whether the president can legally declare martial law.
Martial law occurs when the military assumes temporary control over various civilian authorities. It is closely associated with the right of habeas corpus, which is the right to a hearing and trial on 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 US Constitution specifically protects the right of habeas corpus, which is the right of any person under arrest to appear in person before the court to ensure they have not been falsely accused. While a declaration of martial law may be accompanied by a suspension of habeas corpus, they are distinct concepts. The suspension of habeas corpus allows the government to detain and hold individuals without charge but does not imply an unusual role for the armed forces.
Throughout American history, the federal and state governments have declared martial law over 60 times. While the Constitution does not grant the president the authority to declare martial law, several presidents have done so. In 1861, President Lincoln suspended habeas corpus in Maryland to try large numbers of civilian rioters in military courts and prevent the movement of Confederate troops on Washington. In 1863, he issued Proclamation 113, declaring martial law and further suspending habeas corpus in Kentucky. 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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The US Constitution and martial law
The US Constitution does not define martial law, nor does it specify who can declare it. It also does not grant the president "conclusive and preclusive" authority over the domestic use of the military. In fact, it explicitly vests power in the legislative branch, meaning the president cannot act against Congress's wishes in this area.
The US Constitution does, however, acknowledge the possibility of martial law as an emergency power. Article 1, Section 9 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.
This implies that martial law can be declared in the case of a foreign invasion or civil war, when the courts are closed and it is impossible to administer criminal justice according to the law. In such cases, the military can step in to govern until the laws can be reinstated.
Despite the lack of clarity in the US Constitution, several presidents throughout history have declared martial law. For example, in 1861, President Lincoln suspended habeas corpus to arrest one-third of the Maryland state assembly. In 1863, he imposed Congressionally authorised martial law on Kentucky, Maryland and Missouri. However, the Supreme Court has never explicitly held that the president can declare martial law.
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Presidential power to declare martial law
The US Constitution does not define martial law and does not specify who can declare it. The Supreme Court has never explicitly held that the President can declare martial law, and legal scholars debate whether the President has the power to do so. Some believe the President has the executive power to declare it, while others argue that Congressional authorization is required.
Throughout American history, the federal and state governments have declared martial law over 60 times, and several Presidents have imposed or approved declarations of martial law. For example, in 1861, President Lincoln suspended habeas corpus to arrest one-third of the Maryland state assembly, and in 1871, Chicago mayor Roswell B. Mason declared martial law after the Great Chicago Fire. In 1941, Hawaii was placed under martial law after the Japanese attack on Pearl Harbor.
In certain situations, the President may employ the National Guard or military troops to enforce the law or suppress insurrections. For instance, in 2020, President Donald Trump alluded to the Insurrection Act as a means to call up active-duty troops to quell civil unrest following the death of George Floyd. However, it is important to note that the Insurrection Act is distinct from martial law, as its purpose is to enforce the law rather than replace it.
While the President has the authority to deploy troops to assist civilian law enforcement, they lack the power to replace civilian authorities with federal troops. The Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement activities unless expressly authorized by Congress. Therefore, a presidential declaration of martial law would violate these rules.
To clarify the powers of the President regarding martial law, Congress should pass legislation that defines the scope and limits of presidential authority in this area.
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Congress and martial law
The US Constitution does not define martial law and does not specify who can declare it. The Supreme Court has also never explicitly held that the president can declare martial law. Therefore, it is unclear whether the president can legally declare martial law. However, several presidents throughout history have done so.
Some scholars believe the president has the executive power to declare martial law. Others argue that the president requires congressional authorization to impose martial law in a civilian area. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. According to the Brennan Center for Justice, state officials do have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court.
In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. Additionally, in 1871, Chicago mayor Roswell B. Mason declared a state of martial law after the Great Chicago Fire.
In 2006, the US Congress passed the John Warner National Defense Authorization Act for Fiscal Year 2007, which was signed into law by President George W. Bush. This law gave the 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, in the Senate Hearing, Senator Kit Bond criticized the law, stating that it was "ill-conceived, unnecessary, and dumb."
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Supreme Court rulings on martial law
The Supreme Court has addressed the legality of martial law through several landmark cases, affirming that while martial law can be permissible under specific circumstances, it is subject to constitutional limitations. However, the Court has never explicitly ruled that the president or federal government can declare martial law.
In Ex parte Milligan (1866), the Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were operational. This case set a precedent for the limits of martial law, highlighting the tension between national security and civil rights. The Court affirmed that military authority must align with constitutional principles and is not absolute.
In Duncan v. Kahanamoku (1946), the Supreme Court considered the case of two civilians convicted by military courts in Hawaii during World War II, despite civilian courts being open. The Court overturned the convictions, citing Milligan and emphasizing the limitations of martial law. This case reinforced the principle that martial law cannot supersede civilian authority indefinitely and that military rule is not absolute.
In Youngstown Sheet & Tube Company v. Sawyer (1952), the Supreme Court established a framework for analyzing exercises of executive power. While not directly addressing martial law, this ruling provides guidance for determining whether a presidential declaration of martial law exceeds executive authority. According to Youngstown, when Congress has passed a statute on an issue, the president cannot act against Congress's expressed will unless the Constitution grants the president conclusive and preclusive power in that area.
In Luther v. Borden (1849), the Supreme Court held that state declarations of martial law were conclusive and not subject to judicial review. The Court found that the Rhode Island legislature acted within its rights by resorting to the usages of war to combat insurrection in the state. This case recognized the validity of martial law established by supreme political authority during wartime.
While these rulings provide some guidance, the Supreme Court's precedent on martial law is limited, inconsistent, and vague. The exact scope and limits of martial law remain unclear, and Congress and state legislatures have been urged to enact clearer and more restrictive laws to define it.
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Frequently asked questions
The Constitution does not define martial law and does not specify who can declare it. While several presidents have imposed martial law, neither the Constitution nor federal law explicitly authorizes the president to do so. Therefore, it is unclear whether the president can legally declare martial law.
Martial law occurs when the military assumes temporary control over various civilian authorities. It is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment.
Martial law can be declared when civil rule fails, temporarily being replaced with military authority in a time of crisis. This can include times of war, natural disaster, and civic dispute.
Yes, martial law has been declared several times in the United States, including during the Whiskey Rebellion, in Kentucky, Maryland, and Missouri during the Civil War, and in Chicago after the Great Chicago Fire of 1871.
