Keith Mack
Martial law is a dramatic departure from normal practice, referring to when the military temporarily assumes governance of an area, imposing its own rules. In the US, it has been declared at least 60 times, mostly by state and local officials. The US Constitution does not define martial law or specify who can declare it, and the Supreme Court has never explicitly ruled that the president can. However, several presidents have declared it, and modern interpretation allows the president to declare degrees of martial law in specific circumstances. Some scholars believe the president has the power to declare it, while others believe they need congressional authorisation.
| Characteristics | Values |
|---|---|
| Who can impose martial law in the US | The US Constitution does not define who can impose martial law. However, the modern interpretation allows the president, Congress, state officials, or local military commanders to declare "degrees of martial law in specific circumstances." |
| Who has imposed martial law in the US | Throughout history, martial law has been imposed at least 60 times in the US, mostly by state and local officials. |
| Instances of martial law in US history | Notable instances include Boston (1774), New York (1776), New Orleans (1812), Kentucky, Maryland, and Missouri (1863), San Francisco (1906), Colorado (1914), and Utah (date unknown). |
| Reasons for imposing martial law | War or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, natural disaster, and other reasons. |
| Effects of martial law | Military temporarily substitutes its authority for civilian authority, including suspending local laws, civil authority, and judiciaries. The commanding officer then substitutes temporary laws and military tribunals. |
| Limitations and controversies | The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. The Posse Comitatus Act limits the use of federal troops in domestic law enforcement without an official declaration of martial law. |
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What You'll Learn
The US President
The US Constitution does not define martial law, nor does it specify who can declare it. The Supreme Court has never explicitly ruled that the president can declare martial law. However, several presidents throughout history have imposed or approved declarations of martial law. For example, in 1863, President Lincoln imposed martial law on Kentucky, Maryland, and Missouri with Congressional authorization.
The president has the authority under current law to deploy troops to assist civilian law enforcement. However, the president lacks the authority to replace civilian authorities with federal troops. This distinction is essential because martial law typically refers to instances when the military temporarily assumes governance of an area, replacing civilian authority.
There are two competing theories regarding the source of the power to declare martial law. One theory suggests that martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. The other theory posits that Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its actions.
The lack of a clear definition of martial law and the limited and inconsistent Supreme Court precedent contribute to the uncertainty surrounding the president's authority to declare it. This ambiguity has led to debates about the scope and limits of martial law, with calls for Congress and state legislatures to enact stricter and better-defined laws.
In summary, while there is a history of US presidents imposing or approving martial law, the legal authority for the president to do so independently remains unclear due to the complex and unsettled nature of the relevant laws.
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State governors
While the US President does not have the explicit authority to declare martial law, state governors can impose martial law in their respective states. The US Constitution does not define martial law and does not specify who can declare it. However, several presidents and state governors have imposed or approved declarations of martial law throughout American history.
An example of a state governor imposing martial law is the Colorado Coalfield War in 1914. The Colorado National Guard was initially called in to quell the strikers, but the situation escalated, and the governor proclaimed martial law, resulting in the Ludlow Massacre.
It is important to note that even under martial law, state officials, including governors, are bound by the US Constitution and valid federal laws. Individuals can challenge a state governor's declaration of martial law by seeking injunctive relief in federal court.
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Congress
The Supreme Court has, however, held that states can declare martial law, and almost all state constitutions allow the state governor or legislature to impose it. The Court has also never clearly stated whether the federal government has the power to declare martial law, and if so, whether the president could do so unilaterally or would require congressional authorization.
The modern interpretation of the US Constitution 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 believe the president needs congressional authorization to impose martial law in a civilian area.
In US history, martial law has been declared more than 60 times, mostly by state and local officials. Notable examples include:
- Boston (1774) — In response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, one of which effectively placed Boston under martial law.
- New York (1776) — Following the British capture of New York City, martial law was imposed to restore order and assert British authority.
- New Orleans (1812) — General Andrew Jackson imposed martial law during the War of 1812.
- San Francisco (1906) — Following the earthquake of 1906, federal troops were pressed into martial law service.
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Local military commanders
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. While the US Constitution does not define martial law, it is generally understood as the military's temporary assumption of authority in place of civilian authority. This can occur in stages, without ever reaching a total military takeover.
Another example of a local military commander imposing martial law is Union General Benjamin Butler, who took over the administration of Baltimore from civilian authorities in 1861, despite lacking federal authority to do so.
It is important to note that the Supreme Court has never explicitly ruled that the president or federal government can declare martial law. Instead, it has held that states can declare martial law, and almost all state constitutions allow the state governor or legislature to impose it. The exact scope and limits of martial law remain unclear, and Congress and state legislatures must enact stricter and better-defined laws to address this issue.
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Supreme Court rulings
In the United States, martial law has been imposed at least 68 times, mostly at the state level. The president does not have the authority to declare martial law. The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, state officials do have the power to declare martial law, provided their actions abide by the U.S. Constitution and are subject to review in federal court.
The Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted legislation in this area. This legislation does not include authorization for the president to impose martial law. Even if Congress provided such authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law.
The Supreme Court has ruled on specific cases involving martial law. In Ex parte Milligan (1866), the Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session. In Duncan v. Kahanamoku (1946), the Court found that the Constitution applied in full in Hawaii, an incorporated territory at the time, and that the legality of martial law must be analyzed as if it were a state.
In Luther v. Borden (1849), the Court addressed the source of the power to declare martial law, noting that it arises from the government's right and duty to maintain public order and keep the peace. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law.
State supreme courts have also ruled on cases involving martial law. In an 1815 case, the Louisiana Supreme Court described General Andrew Jackson's conduct in New Orleans during the War of 1812 as "trampling upon the Constitution and laws of our country." In Moyer v. Colorado (date unknown), the Colorado Supreme Court ruled that the state had not violated the right to due process in a case involving a labor dispute where martial law was declared.
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Frequently asked questions
The US Constitution does not define martial law and does not specify who can declare it. However, several presidents and many state governors have imposed or approved declarations of martial law throughout American history. There is no clear consensus on whether the president can declare martial law, and the Supreme Court has never explicitly ruled on this. The modern interpretation, however, allows the president and state officials to declare degrees of martial law in specific circumstances.
Martial law refers to instances when a nation's armed forces assume the governance of an area, usually in response to an emergency or when civilian authority has stopped functioning. It involves the suspension of local laws, civil authority, and sometimes local judiciaries, with the military imposing its own rules and military tribunals.
Yes, martial law has been declared over 60 times in the history of the United States, mostly by state and local officials. Notable instances include:
- Boston (1774): British Parliament passed the Intolerable Acts in response to the Boston Tea Party, with the Massachusetts Government Act effectively placing Boston under martial law.
- New York (1776): After the British capture of New York City, martial law was imposed to restore order and assert British authority.
- New Orleans (1812): General Andrew Jackson imposed martial law during the War of 1812, implementing strict curfews and travel restrictions.
- San Francisco (1906): Following the earthquake, federal troops were pressed into martial law service to maintain order and prevent fires from spreading.
