Keith Mack
Martial law refers to when a region, state, city, or country is placed under the control of a military body. In the United States, the president can deploy the military to enforce laws or suppress rebellions, which may appear to be martial law, but is not. The US Constitution does not explicitly grant the president the power to declare martial law, and the Insurrection Act, which allows the president to deploy the military, is not the same as declaring martial law. However, the president has extensive authority to deploy the military domestically, and in nearly every state, the governor has the power to impose martial law within state borders.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US President, US Congress, state officials, and state governors. |
| What is martial law? | The military assumes temporary control over various civilian authorities. |
| When can it be imposed? | When civil rule fails, being replaced with military authority in a time of crisis. |
| What happens during martial law? | Certain civil liberties are suspended, including the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. |
| What is the role of the President? | The President is the Commander-in-Chief of the Army, Navy, and state militias. They can deploy the military domestically to perform law enforcement functions. |
| What is the Insurrection Act? | A law that allows the President to deploy the National Guard or armed forces to suppress an insurrection or enforce US laws. |
| What is the role of the military? | The military's authority under martial law is virtually unlimited, and they can govern an area through temporary laws and military tribunals. |
| Historical examples | President Lincoln's suspension of habeas corpus in 1861, imposition of martial law in Kentucky, Maryland, and Missouri in 1863, and the Colorado Coalfield War in 1914. |
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What You'll Learn
The US President's powers
The US Constitution does not explicitly grant the President the power to declare martial law. However, the President has extensive powers as Commander-in-Chief of the US military and militia. The President can deploy the military domestically to perform law enforcement functions, especially in cases of insurrection or rebellion. The Insurrection Act gives the President broad authority to use the military as a domestic police force, which may be perceived as martial law, even though it is not sanctioned as such.
Martial law occurs when the military assumes temporary control over civilian authorities, suspending local laws, civil authority, and sometimes the judiciary. While the President cannot unilaterally declare martial law, there have been instances where Presidents have imposed it, such as during the Civil War and the Civil Rights Movement. In these cases, the President suspended habeas corpus, the right to a trial before imprisonment, and deployed the military to enforce law and order.
The President's power to impose martial law is further constrained by the requirement for congressional authorisation. Congress has considered and removed language authorising the President to declare martial law, indicating its awareness and decision to either not authorise it or acknowledge its lack of power. Nonetheless, the President's ability to deploy the military domestically and the lack of a clear definition of martial law create a grey legal area where the line between military support and martial law may be blurred.
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Congress's role
The US Constitution does not explicitly grant the president the power to declare martial law. Instead, the power to declare martial law lies with Congress, which has several war powers that act as checks on the commander-in-chief. Congress has the legislative power to impeach the president and deploy the militia.
Articles I and II of the Constitution give both Congress and the president some control over America's military forces. Article II, Section 2, lists the following presidential powers:
> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
The commander-in-chief clause establishes that the president is in charge of the army, navy, and state militias. However, the Insurrection Act and Title 32 leave it almost entirely up to the president to decide when and where to use US armed forces at home against Americans. This has led to confusion, with some observers equating the deployment of troops under the Insurrection Act with martial law. Nevertheless, the military's authority under the Insurrection Act is substantially less extensive than it would be under martial law.
In 1878, Congress passed the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval. This Act prevents the US military from participating in civilian law enforcement activities and further underscores that Congress, not the executive, should control the utilization of war powers as an instrument of domestic policy.
In 2006, Congress passed the John Warner National Defense Authorization Act, which 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, this Act has been criticized and some senators have sought to reverse its amendments to the Insurrection Act.
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Martial law vs. military aid
Martial law is a term that is often used to refer to the use of the military for law enforcement. It is usually invoked in times of war, rebellion, or natural disaster. Martial law involves the temporary substitution of military authority for civilian rule. The military commander of an area or country has unlimited authority to make and enforce laws, and civilians accused of crimes are brought before military tribunals.
In the United States, martial law may be declared by proclamation of the President, a State governor, or, in limited emergencies, by a local military commander. However, it is important to note that the President lacks the unilateral authority to declare martial law. While the President has considerable authority to use troops domestically, a formal declaration of martial law would require congressional authorization.
Military aid, on the other hand, refers to the use of the military to assist civilian authorities in law enforcement activities. This can include providing support during times of natural emergency or civil unrest. In the United States, the Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without congressional approval. However, the Insurrection Act and potentially Title 32 allow the President to deploy the military to assist civilian authorities with law enforcement.
While there may be similarities between martial law and military aid, the key distinction lies in the degree of military involvement and the suspension of civilian government. In martial law, the military completely replaces the civilian government and exercises jurisdiction over the population, suspending the normal legal system. In contrast, military aid involves the military assisting or supporting civilian authorities without taking over their functions.
Historically, martial law has been imposed during conflicts and occupations, such as post-World War II reconstruction in Germany and Japan, and the British Empire's imposition of martial law during insurgencies in its colonies. In the United States, examples of martial law include President Lincoln's imposition of Congressionally authorized martial law during the Civil War and General Andrew Jackson's declaration of martial law in New Orleans during the War of 1812.
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The Insurrection Act
Although the US President can call the military into action to aid local governments following natural disasters, their assistance is usually limited. The Constitution does not explicitly grant the president the power to declare martial law, which occurs when the military assumes temporary control over various civilian authorities.
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State officials' authority
The US Constitution does not explicitly grant the President the power to declare martial law. However, the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the President some control over America's military forces. Article II, Section 2, lists the following presidential powers:
> "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; [...] he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
The President can call the military into action to help local governments after a natural disaster, but this is usually limited. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law.
State officials have the authority to declare martial law in their respective states. Nearly every state has a constitutional provision authorizing the government to impose martial law. The governor can impose martial law within the borders of the state, and in nearly every state, the governor has the power to do so. The state's constitution and laws give the governor the power to suppress rebellions. The "good faith" test provides broad power to state officials during a period of martial law. They can use the military in "good faith" and escape judicial review.
Throughout American history, the federal and state governments have declared martial law over 60 times.
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Frequently asked questions
Yes, the US President can impose martial law, but only under certain conditions. The US Constitution does not explicitly grant the president the power to impose martial law, but Articles I and II give the president some control over the country's military forces. The president can deploy the military to enforce laws or suppress rebellions, which may be considered martial law.
Martial law is when the military assumes temporary control over civilian authorities. This means that local laws, civil authority, and sometimes local judiciaries are suspended, and a military commander enforces their own laws.
Martial law has been imposed in the US nine times since World War II. Some notable examples include:
- In 1906, after an earthquake in San Francisco, federal troops were stationed in the city and confiscated dynamite to prevent fires from spreading.
- In 1914, during the Colorado Coalfield War, the Colorado National Guard was called in, and the governor eventually proclaimed martial law, resulting in the Ludlow Massacre.
- In 1863, President Lincoln imposed martial law on Kentucky, Maryland, and Missouri.
