Cameron Miranda
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 US history, the Constitution does not explicitly authorise the president to do so. The Supreme Court has also never explicitly held that the president can declare martial law. As such, it is unclear whether the president can legally declare martial law without congressional approval.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | There is no consensus on this. Some sources claim that the US President can declare martial law, while others claim that only Congress has this power. Governors of nearly every state also have the power to impose martial law within their state borders. |
| Legal basis | The US Constitution does not define or specify who can declare martial law. The Supreme Court has held that states can declare martial law, but it has never explicitly held that the President or federal government can. The Posse Comitatus Act makes it unlawful for federal military forces to engage in civilian law enforcement without express authorization by Congress. |
| Historical examples | Martial law has been declared at least 68 times in US history by federal and state officials. Notable examples include Franklin D. Roosevelt's internment of Japanese-Americans during World War II and Abraham Lincoln's suspension of habeas corpus during the Civil War. |
| Current legal status | The Insurrection Act of 1807 gives the President new powers to use the military for domestic disturbances, terrorism, etc. However, the lack of a clear definition of martial law in US law creates a grey area, and some scholars argue that only Congress can legally declare it. |
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What You'll Learn
The US Constitution does not define martial law
The Posse Comitatus Act, passed by Congress in 1878, creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without express authorization by Congress. This further limits the president's ability to declare martial law.
While the Constitution does not define martial law, its use throughout history has defined its application and limits. Martial law generally refers to when the military temporarily substitutes its authority for civilian authority. It is typically imposed when civilian authority over an area has stopped functioning, such as in the case of an insurrection or natural disaster.
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. Notable examples include Boston in 1774, when the British Parliament effectively placed the city under martial law in response to the Boston Tea Party, and New Orleans during the Battle of New Orleans. More recently, Hawaii was under martial law from 1941 to 1944 following the Japanese attack on Pearl Harbor.
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Martial law has been declared by US presidents in the past
While the US Constitution does not define martial law or specify who can declare it, several US presidents have imposed or approved declarations of martial law in the past.
In 1849, the Supreme Court approved Rhode Island's declaration of martial law in response to "Dorr's War". In 1861, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. Lincoln also suspended habeas corpus in 1861, which allowed for the arrest of one-third of the Maryland state assembly, and he imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as draft dodgers. The Supreme Court later ruled that Lincoln's imposition of martial law by way of suspension of habeas corpus was unconstitutional in areas where local courts were still operational.
In 1941, Hawaii was placed under martial law following the Japanese attack on Pearl Harbor. President Franklin D. Roosevelt approved the declaration, and martial law existed in Hawaii until 1944. During this time, Roosevelt used his commander-in-chief powers to put Japanese Americans into internment camps along the West Coast.
In addition to these instances, martial law has been declared by local leaders in specific states or cities, such as in Chicago after the Great Chicago Fire of 1871, in San Francisco after the 1906 earthquake, and in Utah during the Utah War.
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The US Congress can declare martial law
The US Constitution does not define martial law, nor does it specify who can declare it. However, it is clear that the US Congress can declare martial law. While several presidents and many state governors have imposed or approved declarations of martial law throughout American history, the Constitution does not grant the president the power to do so.
The Supreme Court has never explicitly held that the federal government or the president can declare martial law. In the 1952 Youngstown case, the Court established a framework for analyzing exercises of executive power, which would likely be used to determine whether a president’s martial law declaration is legal. According to this ruling, when Congress has passed a statute on an issue, the president cannot act against Congress’s will unless the Constitution gives conclusive and preclusive power to the president over that issue.
Congress has expressed its will regarding the domestic deployment of the military through various laws, such as the Posse Comitatus Act, which makes it unlawful for federal military forces to engage in civilian law enforcement activities without express congressional authorization. These laws create a dense and comprehensive network of rules that restrict the president's ability to use the military domestically. As a result, a unilateral declaration of martial law by the president would likely be against Congress's will and could be challenged in court.
While the president has certain powers to use troops domestically, such as the Insurrection Act, these fall short of authorizing martial law. Congress has the authority to pass legislation that defines the scope and limits of presidential powers regarding martial law and domestic military use. This highlights the important role of Congress in regulating the use of the military within the United States and protecting constitutional rights, even under martial law.
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Martial law has been declared by state governors
While the U.S. Constitution does not define or specify who can declare martial law, it is generally understood that both the U.S. President and the U.S. Congress have the power to impose it. However, the Constitution does not give the President "conclusive and preclusive" authority over the domestic use of the military, and thus, the President cannot act against Congress's wishes in this area.
Throughout 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 explicitly held that the President can. As such, while it is unclear whether the President can legally declare martial law without congressional approval, it is established that state governors can impose martial law within the borders of their state.
- In 1849, Rhode Island's legislature declared martial law in response to "Dorr's War." The Supreme Court approved this declaration in Luther v. Borden, with Chief Justice Roger Taney writing that states had an inherent right to declare martial law to defend themselves and promote public safety.
- In 1861, Brigham Young, the governor of Utah, declared martial law in Salt Lake City during the Utah War. He ordered the people to burn their homes and retreat to Provo. Brigham Young was later removed as governor and replaced by Alfred Cumming.
- In 1871, Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city in response to the Great Chicago Fire.
- In 1933, Georgia Governor Eugene Talmadge declared martial law "in and around" the headquarters of the state Highway Board to force out some of the board's commissioners, whom he had no legal power to remove.
- In 1963, Maryland Governor J. Millard Tawes imposed martial law in the city of Cambridge for over a year in response to clashes between racial justice advocates and segregationists.
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The US president can take command of the National Guard units of each state
The US Constitution does not explicitly define martial law, nor does it specify who can declare it. While several presidents have imposed or approved declarations of martial law throughout US history, the Constitution does not grant the president the authority to unilaterally declare it. The Supreme Court has never explicitly ruled that the federal government or the president can impose martial law.
However, amendments to the Insurrection Act of 1807 have granted the US president new powers, including the ability to take command of the National Guard units of each state without requiring the consent of state governors. This change has raised concerns about the president's potential abuse of power and the need for clearer definitions of the scope and limits of presidential powers.
The Posse Comitatus Act further complicates the issue by generally prohibiting federal military forces from engaging in civilian law enforcement activities without express authorisation from Congress. The act creates a legal grey area, as it does not explicitly prohibit the declaration of martial law, but it does restrict the president's ability to use the military for civilian law enforcement.
While the president has some authority to deploy troops domestically, a unilateral declaration of martial law by the president would likely be deemed unconstitutional and against Congress's will. The dense network of rules and regulations created by Congress effectively restricts the president's ability to act without their approval in this area.
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Frequently asked questions
The US Constitution does not explicitly state whether or not the president can declare martial law. Several presidents have declared martial law throughout history, but the Supreme Court has never explicitly held that the federal government or the president can impose it.
No, the US Constitution does not define martial law. Generally, martial law refers to when a nation's armed forces assume the governance of an area, typically when civilian authority has stopped functioning.
Yes, in nearly every state, the governor has the power to impose martial law within the state's borders.
Yes, in September 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.
