Gavin Howe
There is much speculation about whether former US President Donald Trump could legally declare martial law. While the US Constitution does not explicitly authorise the president to declare martial law, several presidents throughout history have done so. In addition, almost every state has a provision in its constitution allowing for martial law. The Insurrection Act of 1807, which Trump referred to in an executive order, allows the president to deploy federal troops or take control of National Guard units to suppress large-scale protests or unrest. However, it is important to note that the Insurrection Act only permits the military to support civilian authorities, not take their place, as would be the case under martial law.
| Characteristics | Values |
|---|---|
| Can Trump legally declare martial law? | It is unclear whether the president can legally declare martial law. |
| Who can declare martial law? | The Constitution does not define who can declare martial law. However, several presidents and many state governors have imposed or approved declarations of martial law throughout American history. |
| What is martial law? | Martial law refers to the temporary replacement of civilian rule with military control, typically enforced during periods of war, rebellion, or severe natural disasters. |
| What happens when martial law is declared? | The military takes over the responsibility of governing from the civil government, and many civil liberties can be suspended, such as freedom of movement, freedom of speech, and protection from unreasonable searches. Curfews can also be implemented. |
| What is the Insurrection Act of 1807? | The Insurrection Act of 1807 allows the president to deploy federal troops or take control of National Guard units to suppress large-scale protests or unrest. |
| Can Trump invoke the Insurrection Act? | There is speculation that Trump may invoke the Insurrection Act and declare martial law on April 20, 2025, based on an executive order he signed on his first day in office, which hinted at the possibility of such steps within 90 days. |
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What You'll Learn
Martial law vs the Insurrection Act
There is much confusion and concern over the possibility of former US President Donald Trump declaring martial law or invoking the Insurrection Act of 1807. This speculation arose from an executive order he signed on his first day in office, which hinted at the possibility of such actions within 90 days.
Martial law refers to the temporary replacement of civilian rule with military control, typically enforced during periods of war, rebellion, or severe natural disasters. Under martial law, a military commander overseeing a region or the entire country gains unrestricted power to create and enforce laws, and civil liberties are often suspended. While the Constitution does not define or specify who can declare martial law, several presidents and state governors have imposed or approved it throughout American history. However, there is no clear legal authority for the president to declare martial law, and the Supreme Court has never held that the federal government can do so.
On the other hand, the Insurrection Act of 1807 allows the president to deploy federal troops or take control of National Guard units to enforce civilian laws and suppress large-scale protests, unrest, or rebellion. It is a rare and powerful emergency measure that overrides the Posse Comitatus Act, which typically forbids the US military from participating in civilian law enforcement. Importantly, invoking the Insurrection Act does not equate to declaring martial law. Under the Insurrection Act, civilian institutions remain in place, and the military supports rather than replaces them.
While the Insurrection Act has been invoked numerous times throughout US history, it is considered dangerously vague and in urgent need of reform. Legal scholars warn that its ambiguous terms, such as "insurrection" and "rebellion," could be misused or broadly interpreted, granting the president unchecked power.
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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. The Constitution's drafters "made no express provision for the exercise of extraordinary authority because of a crisis". However, it is acknowledged that martial law might exist as an emergency power, but the Constitution does not suggest where that power lies.
The US Constitution grants the federal government as a whole the authority to protect states against invasion and domestic violence. It does not give the president "conclusive and preclusive" authority over the domestic use of the military. Instead, it explicitly vests power in the legislative branch, meaning the president cannot act against Congress's wishes in this area. Therefore, a unilateral declaration of martial law by the president would likely not survive a legal challenge.
The Supreme Court has held that states can declare martial law, and they have done so throughout history in response to violent civil unrest, natural disasters, and to break labour strikes. However, the Court has never specifically held that the president can declare martial law, and there is no legal basis for the federal government to do so. The last time a state declared martial law was in Maryland in 1963 during the Civil Rights Movement.
Some scholars believe the president has the executive power to declare martial law, while others argue that congressional authorization is needed for the imposition of martial law in a civilian area. The Insurrection Act of 1807, which allows the president to deploy federal troops or take control of National Guard units to suppress large-scale protests or unrest, has been speculated to be invoked by President Trump. However, it is important to clarify that the Insurrection Act does not equate to declaring martial law, as civilian institutions remain intact, and the military is there to support rather than replace local government.
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Presidential power to declare martial law
The US Constitution does not explicitly grant the President the power to declare martial law. The Constitution also does not define martial law and is silent as to who can impose it. However, the modern interpretation allows the President and state officials to declare "degrees of martial law in specific circumstances".
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.
The Supreme Court has never explicitly ruled that the President or federal government can declare martial law. However, the Court has suggested that the federal government may impose it in two different decisions, but neither decision was conclusive. The Court has also never indicated whether the President could unilaterally declare martial law or if Congress would first need to authorize it.
Two federal laws impact the President's ability to declare martial law: the Posse Comitatus Act and the Insurrection Act of 1807. The Posse Comitatus Act prevents the US military from participating in civilian law enforcement activities. The Insurrection Act allows the President to deploy the military to suppress rebellions and support local law enforcement.
In conclusion, while the President may have some power to declare martial law, the exact limits and requirements for doing so are unclear.
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The Supreme Court and martial law
The US Constitution does not define martial law, and it does not specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never specifically held that the president can. Therefore, it is unclear whether the president can legally declare martial law.
During the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. The declarations suspended writs of habeas corpus and civil rights throughout the United States, allowed the military to arbitrarily arrest and confine suspected allies of the South, and held trials by military tribunals rather than civilian courts.
In Ex parte Merryman (1861), Chief Justice Roger Brooke Taney concluded that Lincoln's suspension of the writ was illegal. However, Lincoln continued to issue orders suspending the writ. In Ex parte Vallandigham (1864), the Supreme Court effectively upheld the military's decision to arrest and try Clement Vallandigham, who then applied for a writ of habeas corpus. The Court concluded that it did not have the authority to issue the writ to military authorities, thus leaving the system of martial law imposed by Lincoln undisturbed.
After the Civil War, the Supreme Court considered the constitutionality of martial law in Ex parte Milligan (1866). In this case, Lambdin Milligan, a lawyer from Indiana, was found guilty by a military tribunal of conspiring to free Confederate prisoners. Milligan filed a petition for a writ of habeas corpus, and the Supreme Court decided in his favour, but only after the hostilities had ended.
In Luther v. Borden (1849), the Supreme Court approved Rhode Island's declaration of martial law in response to "Dorr's War," a violent movement to adopt a new state constitution. Chief Justice Roger Taney wrote that states had an inherent right to declare martial law to defend themselves and promote public safety.
While the Supreme Court has ruled that martial law is permissible, it insists on certain limits to its use. The Court has found that the concept of martial law is an implicit part of the constitutional order, arising from the fundamental concept of self-defence. However, the Court's decisions indicate that military authority is not absolute and must align with constitutional principles, especially when civilian courts are operational.
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Historical use of martial law
The historical use of martial law in the United States is poorly documented and under-studied. However, it has been imposed at least 68 times in limited, usually local areas of the country. On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law. In nearly every state, the governor also has the power to impose martial law within the borders of the state.
Martial law in the US has been used in a limited number of circumstances, such as in New Orleans during the Battle of New Orleans in 1814, and after major disasters, like the Great Chicago Fire of 1871, the 1906 San Francisco earthquake, and the Omaha race riot of 1919. It has also been declared during periods of civil unrest, such as the Illinois Mormon War in Nauvoo, Illinois, the Utah War, and the 1963 Cambridge riot during the Civil Rights Movement. In 1932, President Herbert Hoover directed the military to clear protesting veterans and their families from an encampment near the US Capitol, but this was not an official declaration of martial law.
In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, allowing him to suspend habeas corpus and civil rights throughout the US. This was challenged in Ex parte Milligan, and the Supreme Court ruled that Lincoln's imposition of martial law was unconstitutional in areas where local courts were still in session. The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval.
Martial law has been declared nine times since World War II, and in five instances, it was used to counter resistance to federal desegregation decrees in the South. In 1941, Hawaii was placed under martial law after the Japanese attack on Pearl Harbor. This was later approved and expanded by Franklin Roosevelt's executive order to include the incarceration of Japanese-Americans on the West Coast. This was the second time martial law had been implemented nationally by a president during wartime, the first being when Abraham Lincoln imposed it on border states between the North and South during the Civil War.
Outside of the US, martial law was imposed in Beijing in 1989 following the Tiananmen Square protests, in Egypt from 1967 to 2021, in Taiwan for one of the longest periods of martial law in modern history, and in the Philippines in 2009 and 2017.
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Frequently asked questions
It is unclear whether the President can legally declare martial law. The Constitution does not define martial law, and it does not specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never specifically held that the President can.
Martial law refers to the temporary replacement of civilian rule with military control, typically enforced during periods of war, rebellion, or severe natural disasters. Under martial law, a military commander overseeing a region or the entire country gains unrestricted power to create and enforce laws.
Yes, martial law has been declared at least 68 times in the US, usually by state or federal officials, although no President has imposed it since the Civil War. The last time a state declared martial law was in Maryland in 1963 during the Civil Rights Movement.
The Insurrection Act of 1807 allows the President to deploy federal troops or take control of National Guard units to suppress large-scale protests or unrest. It is among the most powerful emergency powers available to a President.
There is speculation that Trump may invoke the Insurrection Act due to an executive order he signed on his first day in office, which hinted at the possibility of such steps within 90 days. However, no official action has been announced, so it remains a possibility, not a certainty.
