Gavin Howe
Martial law refers to instances when a nation's armed forces assume the governance of an area. It is typically a last resort, as it can be easily abused as a political tool to control the population. The authority to declare martial law varies across different countries and governments. In the United States, the President does not have explicit authority to declare martial law, and it is generally believed that Congress or state officials are the ones with the power to authorize it. In other countries, such as Bahrain and Bangladesh, martial law has been declared by a King or Chief Martial Law administrators respectively.
| Characteristics | Values |
|---|---|
| Country | United States, China, Switzerland, Canada, Bangladesh, South Korea, Israel, Syria |
| Authorizer | President, Governor, Legislature, State, Congress, King, Chief Martial Law Administrators, City Mayor |
| Authorizer's Power | Control of the military, Suspension of local laws, civil authority, and judiciaries |
| Authorizer's Limitations | Bound by the Constitution, Valid federal laws, Subject to judicial review |
| Authorizer's Actions | Imposing curfews, travel restrictions, censorship, crackdown on political rights, etc. |
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The US President
The US Constitution does not define martial law and does not explicitly grant the US President the power to declare it. The Constitution also does not explicitly forbid the President from declaring martial law. However, the power to declare martial law is generally believed to be vested in the legislative branch.
Some scholars believe that the President has the executive power to declare martial law, but others argue that congressional authorization is required for the President to impose martial law in a civilian area. Congress has passed numerous laws related to domestic military deployment, but there are currently no federal statutes that explicitly authorize the President to declare martial law.
The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if authorized by the constitution or laws of the state. State governors have historically declared martial law during times of labor unrest or insurrection, although it is considered controversial and has not occurred recently.
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US Congress
The US Constitution does not define martial law or explicitly state who can impose it. However, the US Congress has the power to authorize a presidential declaration of martial law. Congress might be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.
Congress has placed restrictions on the president's ability to use the military domestically, and a presidential declaration of martial law would violate these rules. The Posse Comitatus Act, for example, makes it illegal for federal military forces to participate in civilian law enforcement activities without Congress's express authorization. The Insurrection Act, however, allows the president to deploy the military to assist civilian authorities with law enforcement activities.
The Supreme Court has held that individual states have the power to declare martial law if authorized by the constitution or laws of the state. State officials' actions under the declaration must abide by the US Constitution and are subject to review in federal court.
Although the president can call on the military to help local governments after a natural disaster, its help is usually limited. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law.
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State officials
In the United States, state officials have the power to declare martial law. This power is granted to them by the state constitution or the state legislature. State governors have declared martial law during times of labour unrest, insurrection, or natural disaster. For example, in 1837, Governor Gosford proclaimed martial law in the district of Montreal, and in 1871, Chicago Mayor Roswell B. Mason declared a state of martial law following the Great Chicago Fire.
When martial law is declared, local laws, civil authority, and sometimes local judiciaries are suspended, and a military commander assumes virtually unlimited authority to govern an area. However, state officials must abide by the U.S. Constitution and valid federal laws, and their actions under a declaration of martial law are subject to review in federal court.
While the U.S. Constitution does not explicitly define when a president can declare martial law, it also does not explicitly grant the president the power to do so. Some scholars believe the president has the executive power to declare martial law with congressional authorization, while others believe Congress may be the only governmental branch that can legally declare it. The Supreme Court has never explicitly ruled that the president can declare martial law, and any such declaration would likely not survive a legal challenge.
In summary, state officials in the United States have the power to declare martial law, but their actions must be in accordance with the U.S. Constitution and federal laws, and they are subject to review by federal courts.
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Supreme Court rulings
In the United States, martial law is limited by several court decisions that were handed down between the American Civil War and World War II. The US Constitution 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, and the president cannot act against Congress's wishes in this area.
The US Supreme Court has ruled that martial law is permissible but has insisted on certain limits on its use. The Court has never explained the legal basis for martial law, and its statements on the matter have been inconsistent. While it has implied that the federal government can declare martial law, it has never said so conclusively, and it is unclear whether the president could unilaterally declare it or if Congress would first need to authorize it.
In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. Lincoln suspended habeas corpus and civil rights throughout the US, and the Supreme Court later ruled that this imposition of martial law was unconstitutional in areas where local courts were still in session.
In 1864, the Supreme Court effectively upheld the military's decision to arrest and try Clement Vallandigham, concluding that it did not have the authority to issue a writ of habeas corpus to military authorities. In 1866, the Court found that Lincoln had violated the Constitution when he decided to suspend the writ of habeas corpus in Indiana.
In 1946, the Supreme Court considered a challenge to an order by the governor of Hawaii, who declared martial law after the attack on Pearl Harbor in 1941. The Court concluded that the convictions of two civilians by military courts should be overturned because the conditions specified in Milligan had not been satisfied.
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Foreign leaders
In the context of foreign leaders, the power to declare martial law varies across different countries and political systems. Here are some examples:
United States: In the United States, the power to declare martial law rests with both federal and state governments. While the Constitution does not explicitly grant the President the power to declare martial law, it also does not specifically forbid it. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials, including governors, have the power to declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court.
Historical Context: Throughout American history, martial law has been declared over 60 times by both federal and state governments. Examples include President Lincoln imposing Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War. Additionally, state governors have declared martial law during times of labour unrest, such as in Spokane in 1917 during a statewide lumber strike.
Other Countries:
- Canada: The War Measures Act was a statute that allowed the Canadian government to assume emergency powers, stopping short of martial law. It was invoked during World War I, World War II, and the October Crisis of 1970.
- United Kingdom: In 1776, following the British capture of New York City, martial law was imposed to restore order and assert British authority. Governor William Tryon retained his title, but military commanders took control of the city's administration.
- Bahrain: In 2011, King Hamad bin Isa Al Khalifa declared martial law during an anti-government uprising, granting authority to the police and military to crack down on protesters.
- Bangladesh: Bangladesh has experienced martial law multiple times, including under Chief Martial Law administrators Ziaur Rahman and Hussain Muhammad Ershad in the late 1970s and early 1980s.
- China: In the final year of the Qing dynasty, the Beiyang government included provisions for martial law in its draft constitution.
- Philippines: During the regime of Ferdinand Marcos, martial law was imposed, leading to curfews, media suspensions, and the detention and abuse of journalists.
- South Korea: South Korea's President declared martial law, sparking discussions about the potential for similar actions in the United States.
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Frequently asked questions
While the US Constitution does not explicitly define or forbid when a president can declare martial law, the president does not have the authority to declare it. State officials and state governors can declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided.
There are no provisions for martial law in Switzerland, which is a part of the UK. Under the Army Law of 1995, the Army can be called upon by cantonal (state) authorities for assistance. This usually happens in the case of natural disasters or special protection requirements.
The War Measures Act was a Canadian statute that allowed the government to assume emergency powers, stopping short of martial law. The act was replaced by the Emergencies Act in 1988.
In 1972, President Ferdinand Marcos placed the Philippines under martial law. This lasted for 9 years until he was ousted in 1986 by the People Power Revolution.
