Cecily Zamora
The question of whether a president can declare martial law is a complex one, with no clear answer. While the US President has the power to impose martial law, the Supreme Court has never explicitly held that the President has this authority. The Constitution does not define martial law, and there are no federal statutes that authorize the President to declare it. The Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement, except with express authorization from Congress. The Insurrection Act grants the President the power to deploy the military to assist civilian authorities, but this falls short of a declaration of martial law. The scope of martial law remains unclear, and the exact powers of the President in this regard are uncertain.
| Characteristics | Values |
|---|---|
| Can the president declare martial law? | The president does not have the authority to declare martial law. |
| Can martial law be declared? | Yes, martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. |
| Who can declare martial law? | Congress has the power to declare war and provide for carrying on war, which includes the power to declare martial law. The U.S. president and Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state. |
| What does martial law mean? | There is no established definition of martial law. In the U.S., it usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. |
| What does martial law allow? | Martial law allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. It can include the suspension of the right of habeas corpus and civil rights. |
| Can the president deploy troops without declaring martial law? | The president has the authority to deploy troops domestically to assist in civilian law enforcement activities. |
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What You'll Learn
The US President's authority to impose martial law
The US Constitution does not define martial law or specify who can declare it. While the Constitution gives Congress the authority to regulate the domestic deployment of the military, it does not explicitly grant the president the power to declare martial law. The Supreme Court has also never specifically ruled that the president or federal government can declare martial law.
Some scholars believe the president has the executive power to declare martial law. However, others argue that the president requires congressional authorization to impose martial law in a civilian area. This ambiguity means that Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.
The president, as Commander-in-Chief, has the power to deploy troops to assist civilian law enforcement. However, this does not include the authority to replace civilian authorities with federal troops. The Insurrection Act grants the president the authority to deploy troops to assist local governments after a natural disaster or in response to war or insurrection. For example, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War.
While the president has the power to deploy troops, the scope of martial law remains unsettled. The exact limits of the president's ability to order domestic troop deployments short of martial law is dangerously broad until Congress and state legislatures enact stricter and better-defined limits.
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The US Congress's authority to impose martial law
The US Constitution does not define martial law, and it does not specify who can declare it. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. However, this legislation does not include authorization for the president to impose martial law.
Congress has the power to declare war and to provide by law for carrying on war. This power extends to all legislation essential to the vigorous and successful prosecution of war, except where it interferes with the command of forces and the conduct of campaigns—powers that belong to the President as Commander-in-Chief.
While the Constitution does not define it, martial law generally refers to when the military temporarily substitutes its authority for civilian authority. In other words, it occurs when the army takes over a civilian area and imposes its own rules. This can include suspending writs of habeas corpus and civil rights, allowing the military to arbitrarily arrest and confine people, and holding trials by military tribunal rather than civilian courts.
The Supreme Court has never specifically ruled that the President or federal government can declare martial law. However, the Court has held that states can declare martial law, and almost all state constitutions allow the state governor or legislature to impose it. The Court's ruling in Luther v. Borden (1849) endorsed the constitutionality of martial law, but this decision applied to states, not the federal government.
Some scholars believe the President has the executive power to declare martial law, while others argue the President needs congressional authorization. Congress may be the only governmental branch that can legally declare martial law, and the President can only act according to its actions.
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State governor's authority to impose martial law
Martial law in the United States has a long history, dating back to the American Revolutionary period when British authorities imposed it to suppress colonial resistance. Since then, several presidents and state governors have imposed or approved declarations of martial law. However, the question of whether the president can legally declare martial law remains unclear. While the Constitution does not explicitly prohibit the president from declaring martial law, it also does not explicitly authorise them to do so.
State governors, on the other hand, have the authority to impose martial law under certain circumstances. This authority is derived from the fact that states can declare martial law, as held by the Supreme Court. However, there are significant limits to this power. For example, in the case of Allen v. Oklahoma City (1935), the martial law decree was not accepted as a justification for enacting a segregation ordinance. Additionally, in Hearon v. Calus (1935), the court found no evidence of a state of war or disorder to justify the governor's takeover of the state highway commission.
The imposition of martial law by state governors has occurred in several instances throughout history. For example, in 1892, the governor of Idaho declared martial law after striking mineworkers blew up a mill and shot at strike-breaking workers. Similarly, in 1914, the governor of Colorado proclaimed martial law during the Colorado Coalfield War, which ultimately resulted in the Ludlow Massacre. In 1963, Maryland Governor J. Millard Tawes imposed martial law on the city of Cambridge for over a year in response to clashes between racial justice advocates and segregationists.
While state governors have the authority to impose martial law, this power is not without limits. The Supreme Court has ruled that martial law must be analysed as though it were a state, even if it is imposed in a territory, as seen in the case of Hawaii in 1942. Additionally, the Supreme Court has held that martial law cannot exist where local courts are still in session, as seen in Ex parte Milligan (1866). This ruling emphasised that martial law is only valid during a state of emergency and that regular governance must be restored as soon as possible.
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Martial law and the right to habeas corpus
The US Constitution does not define martial law, and it does not specify who can declare it. While several presidents and state governors have imposed or approved declarations of martial law throughout US history, neither the Constitution nor federal law explicitly authorises the president to declare martial law. The Supreme Court has also never specifically held that the president can. Therefore, it is unclear whether the president can legally declare martial law.
The right to habeas corpus is the right of any person under arrest to appear in person before a court to ensure they have not been falsely accused. The US Constitution specifically protects this right in Article I, Section 9. The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left "forever inviolable".
During the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. This included the suspension of writs of habeas corpus throughout the US, which allowed the military to arbitrarily arrest and confine people they believed were allied with the South. In 1864, a military tribunal found Lambdin Milligan, a lawyer from Indiana, and his co-conspirators guilty and sentenced them to death. In 1865, nine days before the government was going to hang him, Milligan filed a petition for a writ of habeas corpus.
In 1942, the Supreme Court found that the Constitution applied in Hawaii, which had been under martial law since the Japanese attack on Pearl Harbor in 1941, in full. This meant that the legality of martial law had to be analysed as though Hawaii was a state.
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Martial law and the deployment of troops
Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. It can continue for a specified amount of time or indefinitely, and standard civil liberties may be suspended for as long as martial law continues. Most often, martial law is declared in times of war or emergencies, such as civil unrest and natural disasters. It may also be declared in instances of military coups d'état.
The legal justification for martial law often stems from the common-law doctrine of necessity, or some variation of it. While the United States Constitution does not explicitly permit the declaration of martial law, scholars often interpret US law to allow for its implementation in times of necessity. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. The legislation does not include authorization for the president to impose martial law, so the president has no power to do so. However, the president has ample authority under current law to deploy troops to assist civilian law enforcement.
The deployment of troops during martial law has occurred in several instances throughout history. For example, during the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. The declarations suspended the writs of habeas corpus and civil rights throughout the United States, allowing the military to arbitrarily arrest and confine people suspected of being allied with the South. Trials were also held by military tribunals rather than civil or criminal courts. In another instance, in 1914, the imposition of martial law climaxed during the Colorado Coalfield War, with the proclamation of martial law being made by the governor, and President Wilson sending in federal troops to eventually end the violence.
In the United States, federal troops have been utilized at least 14 times under the Insurrection Act before the 1990s and 23 times since 1992 under the Posse Comitatus Act. These deployments can occur without an official declaration of martial law. For example, in 1932, President Herbert Hoover directed the military to clear protesting veterans and their families from an encampment near the US Capitol. In another instance, during the West Virginia Coal Wars (1920-1921), martial law was declared in the state of West Virginia, and federal troops were dispatched to deal with the striking miners.
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Frequently asked questions
The US Constitution does not define martial law, and it does not specify who can declare it. The law surrounding the concept is complicated and unsettled. While the US President has the power to impose martial law, it is not clear whether they can legally declare it. Therefore, it is unclear whether changing the president during martial law would be possible.
Yes, martial law has been declared more than 60 times in US history, mostly by state and local officials. However, several presidents throughout history have also imposed or approved declarations of martial law. For example, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War.
In the United States, martial law usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. However, the term "martial law" has no established definition, and different people have used it to describe a wide variety of actions, practices, or roles for the military.
Yes, the president has considerable authority under current law to deploy troops to assist civilian law enforcement. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without Congressional authorization. However, the Insurrection Act and potentially Title 32 allow the president to deploy the military to assist civilian authorities.
Yes, Congress has the power to declare war and provide for carrying out the war. This power includes all legislation essential to the vigorous and successful prosecution of the war. Congress has also enacted a wide variety of laws that regulate when and where the military may be used domestically.
