Gavin Howe
Martial law is a legal concept that allows the military to assume governance and enforce laws in place of civilian authorities. It is typically invoked during times of war, rebellion, natural disaster, or civil unrest. While the power to declare martial law varies internationally, in the United States, the President alone cannot declare martial law without congressional authorization. State governors, on the other hand, possess the authority to impose martial law within their respective states, as nearly every state constitution includes provisions for it. This power has been exercised over 60 times in American history, often during periods of civil disorder or emergency.
| Characteristics | Values |
|---|---|
| Country | United States |
| Who can declare martial law | The US President, US Congress, State governor |
| Constraints | Martial law can be imposed within specific borders of a state |
| Number of times martial law has been imposed | 68 times |
| Reasons for declaration | War or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, natural disaster |
| Legal theory | Common law doctrine of necessity |
| Other countries | Pakistan, Bangladesh, Canada, China, India |
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The US President
The US Constitution does not explicitly grant the US President the power to declare martial law. Martial law involves the temporary substitution of military authority for civilian rule and 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, and civil authority is suspended.
While the US Constitution does not define martial law or specify who can impose it, modern interpretation allows the President and state officials to declare "degrees of martial law" in specific circumstances. Some scholars believe the President has the executive power to declare martial law, while others argue that congressional authorization is required for the President to impose it in civilian areas. The Supreme Court has never explicitly ruled on the legal basis for martial law, and its statements on the matter have been inconsistent.
Throughout history, martial law has been imposed at least 68 times in limited, usually local areas of the United States. The President can call on the military to assist local governments after a natural disaster or in other capacities, but this does not constitute a declaration of martial law. The Posse Comitatus Act and other laws regulate domestic military activity and prevent the military from acting within the country.
While the President alone cannot declare martial law over the entire United States without congressional authorization, they may declare it in specific areas, such as the southern border. However, such a declaration could be subject to legal challenge and constitute a violation of states' rights.
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US Congress
The US Constitution does not explicitly define when a president can declare martial law, nor does it specifically forbid it. The Constitution also does not define martial law and is silent as to who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances."
Some scholars believe the president has the executive power to declare martial law. However, others believe the president needs congressional authorization to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions. Congress has the right to impeach a president for an abuse of power, such as declaring martial law without cause.
Congress has given the president considerable authority to use troops domestically to assist in civilian law enforcement activities. The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. The Insurrection Act, passed in 1807, allows the president to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence to enforce federal laws and maintain public order. However, deploying troops under the Insurrection Act is not the same as declaring martial law.
The exact scope and limits of martial law will remain unclear until Congress and state legislatures enact new laws that better define them.
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State governors
In the United States, state governors have the power to impose martial law within their state borders. This power is typically granted by the state constitution or state legislature. Although the U.S. Constitution does not explicitly define martial law or specify who can impose it, nearly every state has a constitutional provision authorizing the government to impose it.
Historically, state governors have declared martial law during times of war, invasion, insurrection, civil unrest, riots, labor disputes, and natural disasters. For example, during the Illinois Mormon War, the governor of Illinois declared martial law to protect the state from mob violence. In Coeur d'Alene, Idaho, the governor declared martial law after striking mine workers blew up a mill and shot at strike-breaking workers, resulting in over 600 arrests. In another instance, Governor James Peabody of Colorado declared martial law during a labor dispute between mine workers and their employers, leading to the arrest of striking workers by the state militia and National Guard.
The imposition of martial law by state governors has been controversial, as it involves the temporary substitution of military authority for civilian rule. When martial law is in effect, military commanders are granted virtually unlimited authority to make and enforce laws, suspend existing laws, and override civil authority and the ordinary administration of justice. While martial law can be necessary in times of crisis, it is considered a last resort due to the potential for abuse as a political tool to control the population, especially political dissenters.
It is important to note that the power of state governors to impose martial law is not absolute and is subject to limitations imposed by court decisions. For example, civilians cannot be tried by military tribunals as long as civilian courts are functional, as affirmed by the U.S. Supreme Court in 1946.
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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, and has ruled that martial law is permissible under specific circumstances, but is subject to constitutional limitations.
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 in resorting to the rights and usages of war in combating insurrection in that state. The Court held that state declarations of martial law were conclusive and not subject to judicial review.
In 1941, immediately after the attack on Pearl Harbor, the governor of Hawaii declared martial law, which was ratified by President Franklin D. Roosevelt two days later. In Duncan v. Kahanamoku (1946), the Supreme Court considered a challenge to that order by two civilians who had been convicted by military courts even though civilian courts were open. The Court overturned the convictions, citing Milligan, and stating that the conditions specified in Milligan had not been satisfied.
In Youngstown Sheet & Tube Company v. Sawyer (1952), the Supreme Court provided a framework for analysing exercises of executive power. According to this ruling, when Congress has addressed an issue by passing a statute, the president cannot act against Congress’s will unless the Constitution gives the president “conclusive and preclusive” power over that issue. This ruling would likely be used by a court to determine whether a president’s martial law declaration has exceeded executive authority.
In conclusion, while the Supreme Court has recognised the implicit permissibility of martial law under certain circumstances, it has not explicitly ruled on the federal government's power to declare it. The Court has emphasised that martial law is subject to constitutional limitations and judicial review.
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State officials
In the United States, state officials, including governors and mayors, have the power to declare martial law within their respective states. Nearly every state has a constitutional provision authorizing the government to impose martial law. This power has been invoked at least 68 times in limited, usually local areas of the country.
When martial law is declared, military authority replaces civilian rule, and the military commander of the area assumes unlimited authority to make and enforce laws. This means that local laws, civil authority, and sometimes local judiciaries are suspended, and the military commander puts in place temporary laws and military tribunals.
In the US, martial law has been declared by state officials in response to war or invasion, domestic war or insurrection, riot or civil unrest, labor disputes, and natural disasters. For example, in 1909, Governor James Peabody of Colorado declared martial law during a labor dispute between mine workers and their employers. The state militia and National Guard began arresting striking workers, including Charles Moyer, who was arrested for desecrating an American flag.
While state officials have the power to declare martial law, their actions under such a declaration must abide by the US Constitution and are subject to review in federal court. The Supreme Court has held that only Congress can substitute military tribunals for civil courts, and only during wartime.
It is important to note that the US Constitution does not explicitly grant the President the power to declare martial law unilaterally. While the President can call on the military to help local governments after a natural disaster, this does not give them the authority to declare martial law.
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Frequently asked questions
On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law. Nearly every state constitution also grants its governor the power to impose martial law within the borders of the state.
No, there is little precedent for the president to enact martial law. However, there is plenty of precedent for a governor (or mayor) declaring martial law.
The US Constitution does not define martial law and is silent as to who can impose it. It also does not grant the president the power to declare martial law.
Yes, throughout American history, the federal and state governments have declared martial law over 60 times.
Martial law involves the temporary substitution of military authority for civilian rule. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws.
