Kara Sears
Martial law is a legal concept that grants the military commander of an area or country the authority to make and enforce laws, temporarily replacing civilian rule. It is typically invoked during war, rebellion, or natural disaster, and has been imposed in various countries, including the United States, Canada, India, Bangladesh, China, and Pakistan. While the authority to declare martial law varies by country, this paragraph will focus on the United States as an example, where the power to impose martial law rests with the President, state governors, and Congress, each with certain constraints and subject to legal interpretation.
| Characteristics | Values |
|---|---|
| Who can declare martial law in the US | The US President, US Congress, and State Governors |
| Who can declare martial law in India | Parliament |
| Who can declare martial law in Canada | Parliament |
| Who can declare martial law in China | President |
| Who can declare martial law in Bangladesh | Chief Martial Law Administrators |
| Who can declare martial law in Pakistan | Government |
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What You'll Learn
US President and Congress
In the United States, martial law involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, military commanders have unlimited authority to make and enforce laws, and all existing laws, civil authority, and the ordinary administration of justice are suspended.
While the US Constitution does not define martial law or specifically grant the president the power to declare it, it has been declared by both federal and state governments over 60 times. The modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances." However, the president's authority to declare martial law is disputed. Some scholars believe the president has the executive power to do so, while others argue that congressional authorization is required for the imposition of martial law in civilian areas.
The Supreme Court has provided inconsistent statements on the matter. While it has suggested that the federal government may impose martial law, it has never explicitly held that it can. The Court's ruling in Luther v. Borden (1849) endorsed the constitutionality of state declarations of martial law, but it did not address the federal government's ability to impose it.
According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice" in the US. While the president can deploy the military to assist local governments after a natural disaster, federal laws typically prevent the military from acting within the country. The Constitution does not explicitly grant the president the power to declare martial law, and a unilateral declaration by the president would likely not survive a legal challenge.
Therefore, while the US President may have some authority to impose martial law, it appears that Congress plays a crucial role in authorizing such a declaration, especially in civilian areas.
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State governor
In the United States, state governors have the power to impose martial law within their state borders. Nearly every state constitution contains provisions that authorise the government to impose martial law. In the past, state governors have declared martial law during times of labour unrest, civil unrest, and riots. For example, in 1892, the governor of Idaho declared martial law in response to striking mineworkers who blew up a mill and shot at strike-breaking workers. Over 600 people were arrested, and the mineworkers formed a new union while in prison.
In Nauvoo, Illinois, Joseph Smith, the leader of the local Mormon community, ordered the destruction of the Nauvoo Expositor, causing an uproar in neighbouring towns. Governor Thomas Ford threatened to call out the militia unless Smith surrendered. Smith responded by declaring martial law and calling on the Nauvoo Legion, an organised city militia of about 5,000 men, to protect Nauvoo from outside violence. Smith was subsequently arrested for treason against the state of Illinois for declaring martial law.
In times of emergency, state governors can call in the National Guard to help enforce existing laws and maintain public order. However, the National Guard must respect the civil rights of all civilians during its deployment and cannot enforce its own laws.
Although state governors have the power to impose martial law, it is considered a last resort as it can be easily abused as a political tool to control the population, especially political dissenters. The U.S. Constitution does not explicitly define when a governor can declare martial law, and there are no specific provisions for the imposition of martial law.
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Supreme Court rulings
The Supreme Court has addressed the legality of martial law on a handful of occasions, but the concept has never been well-defined, and the Court's reasoning in these decisions is inconsistent and vague. The Constitution does not mention martial law, and no act of Congress defines it.
The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, the Court has recognised it as an implicit element of the constitutional framework. In the early years of the Supreme Court, the American judiciary embraced the theory that martial law can be validly and constitutionally established by supreme political authority in wartime. In Luther v. Borden (1849), the Court found that the Rhode Island legislature had been within its rights to resort to the rights and usages of war in combating insurrection in the state.
In 1941, the governor of Hawaii declared martial law after the attack on Pearl Harbor, which was ratified by President Franklin D. Roosevelt two days later. In Duncan v. Kahanamoku (1946), the Court considered a challenge to that order by two civilians who had been convicted by military courts even though civilian courts were open. Justice Hugo L. Black wrote that "our system of government is clearly the antithesis of total military rule". Citing Milligan, Black concluded that the convictions should be overturned because the conditions specified in Milligan had not been satisfied.
In Youngstown Sheet & Tube Company v. Sawyer (1952), the Court provided a framework for analysing exercises of executive power, which would likely be used to determine whether a president's martial law declaration exceeded their authority. According to Youngstown, when Congress has addressed an issue by statute, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue.
Martial law declarations are subject to judicial review. Individuals detained by the military can petition for a writ of habeas corpus, and a court can then decide whether the declaration of martial law was constitutional. The Supreme Court has held that individual states have the power to declare martial law if it is authorised by the constitution or laws of the state. However, even under martial law, state officials must abide by the U.S. Constitution and valid federal laws.
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Congress authorisation
The US Constitution does not define martial law and does not specify who can impose it. However, there are two competing theories on who can declare it. The first theory suggests that the president has the executive power to declare martial law. The second theory suggests that the president needs congressional authorization to impose martial law in a civilian area.
According to the second theory, Congress may be the only governmental branch that can legally declare martial law. This theory is based on the interpretation that the US Constitution does not grant the president the power to declare martial law. Instead, it gives Congress the power to authorize a presidential declaration of martial law.
In support of this theory, some scholars argue that Congress has the power to declare martial law based on the Constitution's enumerated war powers. Articles I and II of the Constitution give Congress some control over America's military forces, which is an essential aspect of declaring martial law.
Additionally, the Supreme Court has held that only Congress can substitute military tribunals for civil courts, further supporting the idea that Congress plays a crucial role in the declaration of martial law.
Throughout history, there have been instances where Congress has authorized the imposition of martial law. For example, in 1844, Congress symbolically endorsed Jackson's imposition of martial law in New Orleans. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri.
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Natural disasters
In the United States, martial law has been declared at the state or local level in response to natural disasters. Examples include the 1900 Galveston hurricane, the Great Chicago Fire of 1871, and the 1906 San Francisco earthquake. In nearly every state, the governor has the power to impose martial law within the borders of the state.
However, the US President does not have the authority to declare martial law, although they can deploy troops to assist civilian law enforcement. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided.
Martial law is a vague term for when military authorities take control of civil governance and law enforcement, typically as a last resort in times of extreme emergency. During natural disasters, most countries use a different legal construct, such as a state of emergency, rather than declaring martial law.
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Frequently asked questions
While the US President can call on the military to help local governments after a natural disaster, the President cannot declare martial law without the prior authorization of Congress. State officials and governors have the power to declare martial law within their state borders.
Martial law involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster.
When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws. Martial law suspends all existing laws, as well as civil authority and the ordinary administration of justice.
Yes, throughout American history, the federal and state governments have declared martial law over 60 times. Notable examples include New Orleans during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during the Civil Rights Movement.
Yes, many other countries have experienced martial law, including Canada, India, Bangladesh, China, Pakistan, Thailand, Egypt, and Poland.
