Keith Mack
The US President can declare martial law in a civilian area, but the extent of their power to do so is debated. While some scholars argue that the President has the executive power to declare martial law, others believe that they require congressional authorization. The Posse Comitatus Act of 1878 prevents the US military from enforcing civilian law, and the Insurrection Act of 1807 allows the President to deploy the military to address rebellions and support local law enforcement. The US Constitution does not explicitly grant the President the power to declare martial law, and the Supreme Court has never ruled that the President can do so. However, Congress has granted the President considerable authority to use troops domestically, and the John Warner National Defense Authorization Act of 2006 gave the President the power to declare martial law and command National Guard units without state governors' consent.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | This is a complex question. While the US President can declare martial law, there is debate over whether they require congressional authorization to do so. |
| What is martial law? | Martial law refers to when the military temporarily substitutes its authority for civilian authority. |
| What does it entail? | Under martial law, local laws, civil authority, and sometimes local judiciaries are suspended. The commanding officer then substitutes temporary laws and military tribunals. |
| What powers does it grant? | The military commander has virtually unlimited authority to govern an area. |
| What laws impact the president's ability to declare martial law? | The Posse Comitatus Act and the Insurrection Act of 1807. The former prevents the US military from participating in civilian law enforcement activities, while the latter allows the president to deploy the military to help local law enforcement deal with domestic violence. |
| When has martial law been declared? | Martial law has been declared nine times since World War II. It has also been declared in various states throughout history, including Illinois, Utah, Hawaii, Colorado, and Idaho. |
| Can martial law be challenged? | Yes, it can be challenged in court. For example, the Supreme Court ruled that Lincoln's imposition of martial law was unconstitutional in Ex parte Milligan (1866). |
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What You'll Learn
The US President's power to declare martial law
The Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities, strengthening the separation of powers between Congress and the President. On the other hand, the Insurrection Act of 1807 allows the President to deploy military forces to suppress rebellions and assist local law enforcement. Amendments to this Act in 2006, through the John Warner National Defense Authorization Act, gave the President the power to declare martial law and command National Guard units without state governors' consent.
The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. Article 1, Section 9 of the US Constitution states that habeas corpus can only be suspended in cases of rebellion or invasion where public safety is at risk. President Lincoln suspended habeas corpus in 1861, leading to the arrest of one-third of the Maryland state assembly, but the Supreme Court later ruled that this was unconstitutional where local courts were still functioning.
In summary, while the US President does have some power to use the military domestically, the President's ability to unilaterally declare martial law is questionable. The Constitution and federal laws, such as the Posse Comitatus Act, limit this power, and any declaration of martial law by the President would likely face legal challenges.
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The US Congress's power to declare martial law
The US Constitution does not explicitly grant the president the power to declare martial law. While some scholars believe the president has the executive power to do so, others argue that the president requires congressional authorization to impose martial law in a civilian area.
Congress has the legislative power to act as a check on the commander-in-chief and possesses war powers that act as checks on the executive branch. Articles I and II of the Constitution give Congress and the president some control over America's military forces. The Constitution Annotated notes that there are two competing theories regarding the source of the power to declare martial law. The first theory states that martial law does not come from any direct authority but arises from the nature of things, being the law of paramount necessity. In other words, it is derived from the government's right, power, and/or duty to maintain public order and keep the peace. The second theory suggests that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law.
The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from engaging in civilian law enforcement activities without congressional approval. This Act strengthens the separation of powers between Congress and the president and reinforces the concept of federalism. While the Insurrection Act of 1807 allows the president to deploy military forces to address rebellions and assist local law enforcement, it does not authorize the president to declare martial law.
Historically, the first use of martial law occurred in 1814 by General Andrew Jackson, who later became the seventh president of the United States. He declared martial law in New Orleans to defend against a British invasion. In 1861, President Lincoln unilaterally suspended habeas corpus and civil rights, which was later authorized by Congress in 1863 for Kentucky, Maryland, and Missouri. However, the Supreme Court ruled that the imposition of martial law was unconstitutional in areas where local courts were still operational.
In 2006, the John Warner National Defense Authorization Act was passed by Congress and signed by President George W. Bush, granting the president the power to declare martial law and take command of National Guard units without the consent of state governors. This expansion of presidential power led to concerns and efforts to reverse the amendments in 2007. Ultimately, the 'Enforcement of the Laws to Restore Public Order' law was repealed in 2008 due to opposition from Congress, state governors, and law enforcement.
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Martial law in civilian areas
The concept of martial law in the United States is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The suspension of 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.
Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. It can be declared in times of war, emergencies, civil unrest, natural disasters, or military coups d'état. In the US, it has been imposed at least 68 times, mostly in limited, local areas. Examples include New Orleans during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during the Civil Rights Movement in response to the Cambridge riot of 1963.
On a national level, both the US President and Congress have the power to impose martial law, as they can be in charge of the militia. However, the Constitution does not explicitly grant the president this power, and the Supreme Court has never ruled that the president or federal government can declare it. Some scholars believe the president has the executive power to do so, while others argue the president needs congressional authorization. Two federal laws impact the president's ability to declare martial law: the Posse Comitatus Act, which prevents the US military from participating in civilian law enforcement activities without congressional approval, and the Insurrection Act, which allows the president to deploy the military to put down rebellions and assist local law enforcement.
When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended, and a military commander imposes temporary laws and military tribunals. A military commander's authority under martial law is virtually unlimited, but there are some limitations. For example, civilians may not be tried by military tribunals as long as civilian courts are functional, and Department of Defense personnel are restricted in their enforcement of civil law.
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Martial law and the suspension of habeas corpus
The concept of martial law in the United States refers to instances when a region, state, city, or the entire country is placed under the control of a military body. Both the US President and the US Congress have the power to impose martial law, as they can be in charge of the militia. However, the Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities, limiting the President's ability to declare martial law.
The imposition of martial law is closely tied to the suspension of habeas corpus, which is the right of any person under arrest to appear before the court to ensure they have not been falsely accused. Article 1, Section 9 of the US Constitution protects this right, stating:
> "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."
On April 27, 1861, President Lincoln suspended habeas corpus under his own authority, imposing it on "prisoners of war, spies, or aiders and abettors of the enemy," as well as draft dodgers. This proclamation was challenged in Ex parte Milligan, and the Supreme Court ruled that the suspension of habeas corpus and imposition of martial law were unconstitutional in areas with functioning local courts.
Throughout history, martial law has been imposed at least 68 times in limited, typically local areas of the United States. Notable instances include the West Virginia Coal Wars (1920-1921), the Colorado Coalfield War (1914), and in response to the Great Chicago Fire of 1871, where martial law was declared by Chicago's mayor.
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The use of the military under martial law
During wartime, "supreme political authority" has allowed for the constitutional use of martial law. For example, in 1857, President James Buchanan sent US forces to Utah in what became known as the Utah War. Similarly, during World War II, Hawaii was under martial law from 1941 to 1944 following the Japanese attack on Pearl Harbor.
The Insurrection Act of 1807 authorises the President to deploy the military to address rebellions and support local law enforcement in dealing with domestic violence. However, the Posse Comitatus Act of 1878 prevents the military from participating in civilian law enforcement activities, creating a delicate balance.
In certain states, governors have the authority to impose martial law, and they have done so in response to various crises. For example, in 1892, the governor of Idaho declared martial law during a strike by mineworkers, leading to the arrest of over 600 people. Similarly, in 1934, California Governor Frank Merriam placed the docks of San Francisco under martial law due to "riots and tumult" caused by a dock worker's strike.
While the President has utilised the military domestically on several occasions, the Supreme Court has never explicitly ruled that the President can declare martial law. The John Warner National Defense Authorization Act of 2006 granted the President the power to declare martial law and command National Guard units without state governors' consent, further complicating the dynamics of military involvement in domestic affairs.
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Frequently asked questions
The US Constitution does not explicitly grant the president the power to declare martial law. Some scholars argue that the president has the executive power to do so, while others believe that congressional authorization is required. The Supreme Court has never ruled conclusively on this matter.
While the US president has the ability to use troops domestically to assist in civilian law enforcement, it is unclear if this has ever led to a formal declaration of martial law. Presidents have imposed martial law in the past by suspending habeas corpus, but the Supreme Court has ruled that this does not constitute a declaration of martial law.
The Insurrection Act of 1807 allows the president to deploy military forces to suppress rebellions and assist local law enforcement within the United States. Amendments to this Act in 2006 expanded the president's powers to use the military for domestic disturbances, terrorism, and insurrection. However, the Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities, creating a legal grey area.
