Keith Mack
Martial law refers to the use of the military for law enforcement and is usually invoked in times of war, rebellion, or natural disaster. It involves the temporary substitution of military authority for civilian rule. While there is no universal definition, it is often regarded as a dramatic departure from normal practice. In the United States, there is ambiguity surrounding who can proclaim martial law. While the U.S. Constitution does not explicitly grant the president the power to declare martial law, several presidents throughout history have done so. State governors also have the authority to impose martial law within their respective states.
| Characteristics | Values |
|---|---|
| Who can proclaim martial law in the US | The US President, Congress, a local military commander, or a State governor |
| Who can't proclaim martial law in the US | It is unclear whether the US President can legally declare martial law |
| Who has proclaimed martial law in the past | Lord Dunmore, the royal governor of Virginia; General Andrew Jackson; British authorities in Boston, Massachusetts; Governor William Tryon in New York City |
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US President
The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents have imposed or approved declarations of martial law throughout American history, the Constitution does not explicitly grant the president the power to declare it. The Supreme Court has also never specifically ruled that the president can declare martial law.
According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws typically prevent the military from acting within the country. However, the president can call on the military to assist local governments in the event of a natural disaster, although its help is usually limited. When martial law is declared, the government assumes governance of the area, and military commanders are given virtually unlimited authority to govern.
There are two competing theories regarding the source of the power to declare martial law. The first theory suggests that martial law arises from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second theory proposes that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law.
While the president may lack the authority to unilaterally declare martial law, Congress has passed laws that impact the president's ability to use the military for domestic purposes. The Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities without congressional approval. On the other hand, the Insurrection Act of 1807 allows the president to deploy military forces to suppress rebellions within the United States and assist local law enforcement.
In conclusion, while the US president has historically imposed or approved declarations of martial law, the legal authority to do so remains ambiguous. The power to declare martial law may lie with Congress, which can authorize the president's use of the military for domestic purposes through legislation such as the Insurrection Act.
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State Governor
In the United States, a state governor can proclaim martial law. Martial law refers to the use of the military for law enforcement, and it involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, insurrection, civil unrest, or natural disaster. When martial law is in effect, military commanders are granted virtually unlimited authority to govern an area, make and enforce laws, and maintain public order.
The power to impose martial law is not explicitly granted by the U.S. Constitution, which does not define martial law and is silent on who can impose it. However, nearly every state has a constitutional provision authorizing the governor or state legislature to impose martial law. This power arises from the government's duty to maintain public order and keep the peace during emergencies.
While state governors have the power to proclaim martial law, their actions must still abide by the U.S. Constitution and are subject to review in federal court. Additionally, the Posse Comitatus Act, enacted in 1878, prohibits federal forces from assisting in domestic law enforcement without congressional approval, further limiting the scope of martial law.
In summary, a state governor can proclaim martial law in their state, but this power is not absolute and must be exercised within the constraints of the Constitution and federal laws.
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Congress
The US Constitution does not define martial law, nor does it specify who can declare it. However, it is generally understood that martial law involves the military temporarily taking over from civilian authorities in an emergency. This could be during a time of war, rebellion, or natural disaster, when civilian authority has ceased to function.
There is ambiguity over whether the president can declare martial law. Some scholars argue that the president has the executive power to do so. However, others believe that the president requires authorization from Congress to impose martial law in a civilian area. The Constitution does not explicitly grant the president the power to declare martial law, and the Supreme Court has never specifically ruled that the president can.
In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. Additionally, in 2008, Congress opposed changes to the Insurrection Act that would have given the president new powers to use the military for domestic disturbances, terrorism, and insurrection. This led to the changes being repealed and the previous Insurrection Act being restored.
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Local military commander
Martial law is a dramatic shift from the normal practice in the United States, where federal laws usually prevent the military from acting within the country. It 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 local military commander of an area or country has unlimited authority to make and enforce laws.
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. It has been declared twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labour dispute, four times for natural disaster, and fifteen times for other reasons.
When martial law is imposed, the local military commander has the power to suspend all existing laws, as well as civil authority and the ordinary administration of justice. They can enforce strict curfews and travel restrictions, and impose temporary laws and military tribunals. The local military commander's authority under martial law is so extensive that they can even arrest judges who rule against their actions, as was the case with General Andrew Jackson, who imposed martial law in New Orleans during the War of 1812.
While the U.S. Constitution does not explicitly grant the president the power to declare martial law, it is generally accepted that the president, Congress, or a local military commander may impose degrees of martial law under specific situations. However, it is important to note that the imposition of martial law by a local military commander is limited to limited emergencies.
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Supreme Court
The US Constitution does not explicitly grant the president the power to declare martial law. The Supreme Court has never specifically ruled that the president or federal government can declare martial law. However, the Supreme Court has held that states can declare martial law, and almost all state constitutions allow the state governor or legislature to impose it.
In Ex parte Milligan, 71 U.S. 2 (1866), the Supreme Court established that trying civilians in military tribunals was unconstitutional unless there were no civilian courts available. 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 Luther v. Borden (1849), the Supreme Court approved Rhode Island's declaration of martial law, upholding that states had an inherent right to declare martial law to defend themselves and promote public safety. However, the Court has never explicitly held that the federal government can impose martial law.
The Supreme Court has considered the constitutionality of martial law on several occasions, indicating that military authority must align with constitutional principles, especially when civilian courts are operational. The Court has ruled that martial law is permissible but has insisted on certain limits to its use, such as suspending civil liberties.
While the Supreme Court has implied that the federal government can declare martial law, its statements have been inconsistent, and it has never conclusively stated that the president could unilaterally declare it without congressional authorization.
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Frequently asked questions
While the US Constitution does not define martial law and does not specify who can declare it, state officials and the president can declare degrees of martial law in specific circumstances. However, the president lacks authority under current law to declare martial law. State governors have the power to impose martial law within their state borders.
Yes, throughout American history, the federal and state governments have declared martial law over 60 times, some sources state 68 times.
Martial law involves the temporary substitution of military authority for civilian rule. The military commander of an area or country has unlimited authority to make and enforce laws. All existing laws, civil authority, and the ordinary administration of justice are suspended.
Martial law has been declared in the US for various reasons, including war or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, and natural disaster.
The Posse Comitatus Act, enacted in 1878, prohibits federal forces from assisting in domestic law enforcement without congressional approval. The Insurrection Act outlines the circumstances under which federal forces may be used in a domestic role.
