Gavin Howe
Martial law refers to the use of the military for law enforcement, and it is often declared when civilian authority over an area has stopped functioning, such as during an insurrection or natural disaster. While the President of the United States can call on the military to help local governments in such situations, the Constitution does not explicitly grant the President the power to declare martial law. Instead, this power may lie with Congress, which can authorize a presidential declaration of martial law, or with state officials, who can declare martial law within their states.
| Characteristics | Values |
|---|---|
| Who can invoke martial law? | The US President, Congress, state governors, and local military commanders may impose degrees of martial law under specific situations. |
| Unilateral declaration by the President | The President alone cannot declare martial law without the prior authorization of Congress. |
| Congress | Congress may be the only governmental branch that can legally declare martial law. |
| Federal government | The Supreme Court has never explicitly held that the federal government can impose martial law. |
| State governments | State governments have declared martial law over 60 times in US history. |
| State officials | State officials can declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court. |
| The military | The Posse Comitatus Act forbids US military involvement in domestic law enforcement without congressional approval. |
| Military assistance | The President can call the military into action to help local governments after a natural disaster, but its help is usually limited. |
| Military takeover | Martial law can occur in stages and may not always result in a total military takeover. |
| Constitutional definition | The US Constitution does not define martial law and does not specify who can declare it. |
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The US President
While the US Constitution does not define martial law, it is generally understood as the use of the military for law enforcement, with military commanders being granted virtually unlimited authority to govern an area. In the US, martial law has been declared at least 68 times, with the President imposing or approving it several times throughout history.
However, the President's authority to declare martial law is a highly debated topic. The Constitution does not explicitly grant the President the power to declare martial law, and neither does federal law. The Supreme Court has also never explicitly held that the President can declare it. While some scholars believe the President has the executive power to do so, others argue that congressional authorization is required for the President to impose martial law in a civilian area.
According to the Posse Comitatus Act, first enacted in 1878, federal forces are prohibited from assisting in domestic law enforcement unless the President has directed operations under the Insurrection Act or related laws. The Insurrection Act gives the President the power to use the military for domestic disturbances, terrorism, insurrection, etc. Despite this, the President cannot unilaterally declare martial law over the entire United States without congressional authorization.
In summary, while the US President has imposed or approved martial law in the past, the current understanding is that the President cannot unilaterally declare it and requires congressional authorization. The President's power to declare martial law is limited to specific circumstances and is subject to legal and constitutional constraints.
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US Congress
The US Constitution does not define martial law, nor does it specify who can invoke it. However, the US Congress has the power to impose martial law, within certain constraints. This is because Congress has legislative power and war powers that act as checks on the commander-in-chief. For example, Congress has the power to impeach, and it can authorise the use of the militia.
Congress passed the Posse Comitatus Act in 1878, which forbids US military involvement in domestic law enforcement without congressional approval. This means that the president cannot act against Congress’s wishes in this area. The Act prevents the president from using the military for civilian law enforcement activities, and it prevents the military from acting within the country.
There is debate as to whether the president can declare martial law. Some scholars believe that the president has the executive power to do so. However, others believe that the president needs congressional authorisation to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law.
The Supreme Court has implied that the federal government can declare martial law, but it has never explicitly stated this. It has also never held that the president can declare 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
While the U.S. Constitution does not define martial law and does not specify who can declare it, state governors have imposed or approved declarations of martial law throughout American history. Almost all state constitutions allow the state governor or legislature to impose martial law.
State officials, including governors, do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court. The Supreme Court has never specifically ruled that the president or federal government can declare martial law, but it has held that states can.
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Local military commander
While the US Constitution does not define martial law and is silent on who can impose it, the modern interpretation allows the president, Congress, or a local military commander to declare "degrees of martial law in specific circumstances".
A local military commander has the authority to temporarily deploy federal troops to maintain order during large-scale unexpected civil disturbances that threaten order or may cause significant loss of life or destruction of property. This deployment can be direct or indirect. Direct support involves enforcing the law and engaging in physical contact with offenders, while indirect support includes logistics, transportation, and training assistance.
Martial law has been declared nine times since World War II, and in five instances, it was designed to counter resistance to federal desegregation decrees in the South. During the War of 1812, General Andrew Jackson, as the local military commander, imposed martial law in New Orleans. He imposed strict curfews and travel restrictions on all residents and declared that anyone challenging his authority would be considered a spy or traitor, leading to mass arrests and overcrowded jails.
In another instance, on September 15, 1857, Governor Brigham Young of the Utah Territory publicly declared martial law in response to tensions with the federal government over issues such as the influence of theodemocracy in his semi-theocratic government, Utah's rejection of federal appointees, and the acceptance of polygamy. The most important provision of this declaration forbade "all armed forces of every description from coming into this Territory, under any pretense whatsoever".
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Supreme Court
The Supreme Court has never explicitly ruled that the president can declare martial law. The Constitution does not define martial law and does not specify who can declare it. However, the Supreme Court has held that states can declare martial law.
In the 19th century, the Court suggested in dicta that a federal martial law power was “implied in sovereignty” or justified by “necessity.” In 1849, the Supreme Court approved Rhode Island's declaration of martial law in response to "Dorr's War." Chief Justice Roger Taney wrote that states had an inherent right to declare martial law to defend themselves and promote public safety.
The Court has never explained the legal basis for martial law and has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it. While the Court has never held that the federal government can impose martial law, it has suggested that the federal government may impose it in two different decisions, but neither was explicit.
In 1866, the Supreme Court ruled that President Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional in areas where the local courts were still in session.
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Frequently asked questions
The President does not have the authority to unilaterally declare martial law. However, the President can call the military into action to help local governments after a natural disaster.
Congress may be the only governmental branch that can legally declare martial law. State officials and governors also have the power to declare martial law within their states.
Martial law refers to the use of the military for law enforcement. It is often a response to insurrection, natural disaster, or civil unrest.
Yes, martial law has been declared at least 60 times in the United States, with some sources citing 68 instances.
