Kara Sears
Martial law is the temporary replacement of civilian government by military rule and is usually invoked in times of war, rebellion, civil unrest, natural disasters, or military coups. It can be used by governments to enforce their rule over the public and has been imposed at least 68 times in limited, usually local areas of the United States. While the US president can call on the military to help local governments after a natural disaster, the US Constitution does not grant the president the power to declare martial law. This power rests with Congress, which may authorize a presidential declaration of martial law. State officials and governors also have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court.
| Characteristics | Values |
|---|---|
| Who can declare martial law | This depends on the country in question. In the US, state governors, Congress, and the President have declared martial law in the past. However, the Supreme Court has never explicitly held that the President or federal government can declare it. In India, the Parliament has the power to indemnify persons in respect of acts done in territories where martial law was in force. |
| Who enforces martial law | The military enforces martial law, with the commanding officer substituting temporary laws and military tribunals. |
| When is martial law declared | Martial law is usually declared in times of war, rebellion, civil unrest, natural disasters, or military coups d'état. |
| What happens during martial law | Standard civil liberties are suspended, and the military enforces rule over the public. |
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What You'll Learn
US President's authority
The US Constitution does not explicitly grant the president the power to declare martial law. While the president has ample authority under current law to deploy troops to assist civilian law enforcement, they lack the authority to replace civilian authorities with federal troops.
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 martial law in a civilian area. The Supreme Court has never explicitly ruled that the president can declare martial law, and Congress may be the only governmental branch that can legally make such a declaration.
The Posse Comitatus Act, passed by Congress in 1878, prohibits US military involvement in domestic law enforcement without congressional approval. This Act limits the president's ability to utilise the military within the United States, and any unilateral declaration of martial law by the president would likely be deemed unconstitutional.
While the president may not have the authority to unilaterally declare martial law, there have been instances where presidents have imposed it with congressional authorisation, such as President Lincoln's suspension of habeas corpus in 1861 and President Lincoln's imposition of martial law on Kentucky, Maryland, and Missouri in 1863. Additionally, in 1842, the Rhode Island General Assembly, a state legislature, declared martial law, and in 1914, the governor of Colorado proclaimed martial law, demonstrating that state officials also have the power to declare martial law.
In 2006, the US Congress passed the John Warner National Defense Authorization Act, which gave the president the power to declare martial law and take command of National Guard units without the consent of state governors. However, this expansion of presidential powers faced opposition, and in 2008, the 'Enforcement of the Laws to Restore Public Order' law was repealed, removing the president's authority to declare martial law in response to a natural disaster, epidemic, or terrorist attack.
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Congress's role
The role of Congress in the declaration of martial law in the United States is a complex and somewhat ambiguous issue. While the US Constitution does not explicitly define martial law or specify who can impose it, Congress does possess certain powers and checks that impact the declaration and enforcement of martial law.
One key power held by Congress is the legislative authority to enact laws that govern the use of martial law. For example, Congress passed the Posse Comitatus Act in 1878, which prohibits the US military from engaging in domestic law enforcement activities without congressional approval. This act serves as a check on the executive branch and ensures that the military cannot be used for civilian law enforcement without Congressional authorisation.
Additionally, Congress has the power to provide checks on the commander-in-chief through its war powers. Article I of the Constitution grants Congress control over America's military forces, allowing them to act as a check on the executive branch's use of martial law. Congress can also impeach the president, which further underscores their role in controlling the utilisation of war powers.
In terms of declaring martial law, there is ambiguity regarding the authority of the president to do so unilaterally. Some scholars argue that the president requires congressional authorisation to impose martial law in civilian areas. This interpretation suggests that Congress may be the only governmental branch with the legal authority to declare martial law. However, others believe that the president possesses the executive power to declare martial law independently.
Historically, Congress has also played a role in shaping the understanding and application of martial law. For instance, in 1844, Congress passed a bill refunding General Andrew Jackson for a fine he paid after being held in contempt of court for his use of martial law in New Orleans. This symbolic gesture was seen as an endorsement of his actions, influencing how Americans perceived the legitimacy of martial law.
In summary, while the role of Congress in declaring martial law is not entirely clear, they undoubtedly possess significant powers and checks that impact the enforcement and limitations of martial law in the United States. The interpretation of Congressional authorisation for a presidential declaration of martial law remains a subject of legal debate.
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State officials' powers
The powers of state officials during martial law are subject to some limitations, but they are still significant. State officials can declare martial law in response to violent civil unrest, natural disasters, or to break labour strikes. For example, in 1900, state officials declared martial law during the Akron Riot and the Galveston hurricane. In 1903, the Colorado governor, James Peabody, declared martial law in Cripple Creek and Telluride to end a peaceful strike by the Western Federation of Miners.
State officials have the authority to impose "degrees of martial law" in specific circumstances, and their actions must abide by the U.S. Constitution. The Constitution Annotated notes that martial law does not come from any direct authority but arises from necessity. When martial law is declared, local laws, civil authorities, and sometimes local judiciaries are suspended, and the military commander assumes virtually unlimited authority to govern the area.
The Posse Comitatus Act of 1878 prevents the U.S. military from participating in civilian law enforcement activities without congressional approval. However, the Insurrection Act of 1807 allows the president to deploy the military to suppress rebellions and assist local law enforcement. The president may also deploy troops to enforce the law in certain situations.
While the Supreme Court has never explicitly ruled that the president or federal government can declare martial law, it has implied that the federal government may have this power. The Court has suggested that a federal martial law power is "implied in sovereignty" or justified by "necessity." However, the Court has never clearly indicated whether the president can unilaterally declare martial law or if Congress must first authorize it.
In conclusion, state officials have the power to declare martial law, and their actions must be in accordance with the U.S. Constitution and are subject to review in federal court. The exact scope and limits of their powers during martial law remain unclear due to sparse and inconsistent legal precedent.
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Supreme Court's stance
The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. The Court's stance on martial law is considered old, vague, and inconsistent. 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 unilaterally declare it or if it would require congressional authorization.
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. States have declared martial law far more frequently than the federal government. Almost all state constitutions allow the state governor or legislature to impose martial law.
The Supreme Court has ruled that martial law is permissible but insists on certain limits on its use. Under martial law, military officials have the authority to take actions that suspend some or all civil liberties and would normally be unconstitutional. The Court's decisions indicate that military authority is not absolute and must align with constitutional principles, especially when civilian courts are operational.
The Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power and would likely be used by a court to determine whether a president’s martial law declaration has exceeded executive authority. According to Youngstown, 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.
The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. This act further restricts the president's ability to declare martial law.
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Other countries' approaches
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. The US Constitution does not grant the president the power to declare martial law, and court decisions have further limited the president's ability to do so. The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. However, the president has the authority to deploy troops to assist civilian law enforcement, and this has been done in cases such as the 1992 Los Angeles riots and in the aftermath of Hurricane Katrina in 2005.
In India, the constitution makes only a sole mention of martial law in Article 34, which gives Parliament the power to indemnify persons in respect of acts done in territories where martial law was in force. In the Puttaswamy v. Union of India case, the Supreme Court of India declared that certain rights of life and liberty are natural rights that cannot be curbed by the state.
The Icelandic constitution provides no mechanism for the declaration of war, martial law, or a state of emergency.
In Switzerland, the Army Law of 1995 allows cantonal (state) authorities to call upon the Army for assistance in cases such as natural disasters or special protection requirements. This generally requires parliamentary authorization and takes place under the civilian leadership of the cantonal authorities.
In Taiwan, martial law was declared in 1947 after the February 28 incident and again in 1949 during the Chinese Civil War, despite the promise of democracy in the Constitution of the Republic of China.
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Frequently asked questions
The US Constitution does not specify who can declare martial law. While the Supreme Court has held that states can declare martial law, it has never explicitly held that the federal government or the president can.
Yes, throughout American history, the federal and state governments have declared martial law over 60 times. During the Civil War, President Abraham Lincoln's administration declared martial law in several states.
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.
