What is Martial Law in the United States?

What Is Martial Law?

Martial law in the United States is applied in occupied territory by the military authority of the occupying power. This power is only given in an emergency. The times it has been enacted have been varied, and the military have taken different roles, actions, and practices, so there is no established protocol or definition. The law governing martial law is unsettled and complex, so as a result, few people truly understand it.

Can the US President Declare Martial Law?

Under the Constitution of the United States, Marshall law may be declared by both the President and Congress because both are in charge of the military. The Supreme Court has never stated whether the President or the federal government have the power to unilaterally declare martial law. There is no specification if it would need congressional approval to be declared countrywide. However, the Supreme Court’s 1952 ruling of Youngstown Sheet & Tube Company v. Sawyer is often cited as likely to be used in deciding if the President would exceed executive authority by declaring martial law.

According to this precedent, once Congress has passed a statute addressing an issue, the President cannot act against Congress’s will unless the Congress grants them “conclusive and preclusive power” over the issue. Congress has addressed domestic deployment of the military in the following ways:

• It has enacted many laws regulating when and where the military may be deployed domestically. Because the laws are so comprehensive, if the President deployed the military domestically in any way not laid out in these laws, it would be going against Congress’s will.
  
  
• The Posse Comitatus Act makes it illegal for the military to participate in civilian law enforcement activities on a federal scale unless Congress has provided express permission. Martial law would give the power of civilian law enforcement to the military, making martial law on a federal scale against Congress’s will.
  
  

Therefore, with its laws governing domestic military deployment, Congress has restricted the President’s ability to declare martial law or deploy the military domestically. The authority to declare martial law, instead, sits with Congress.

Can the United State congress declare Martial Law?

On a national level, the United States Congress and the United States president have the power to declare martial law.  However, although congress might be able to authorize a presidential declaration of martial law, this has yet to be conclusively decided by the Supreme Court.

Even if Congress were to provide authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law. For example, Title 32 and the Insurrection Act allows the President to deploy the military to assist the law enforcement activities of civilian authorities whenever the President wants to. These deployments can sometimes look similar to martial law, but it is a legal gray area with much ambiguity. Congress needs to pass laws better defining martial law and the scope of Presidential power in relation to domestic use of the military and martial law.

Does the Constitution apply during martial law?

Yes, even under martial law, constitutional rights cannot be suspended or violated. Martial law declarations are also subject to judicial review. Individuals detained by the military when an area is under martial law can petition for the writ of habeas corpus, therefore requesting their release. If the court considers the petition, it can decide whether the declaration of martial law was valid.

Can States Declare Martial Law?

Although the U.S. Constitution makes no specific provision for the imposition of martial law by each State, nearly every State has a constitutional provision authorizing the government to impose martial law. Typically, the power to declare martial law rests with a state’s governor.

States have been the most frequent declarer of martial law in the past. State officials are still bound by the Constitution and applicable federal laws. Detained individuals can petition for the writ of habeas corpus. If they are not detained, people can challenge the martial law declaration by seeking injunctive relief in a federal court.

Can the President Declare Unilateral Martial Law?

There are no federal laws or statutes that give the President explicit authorization to declare martial law. The Supreme Court has also never clearly stated the legal basis for martial law. It is implied that the federal government can declare martial law, but it is not clearly stated that they can.  It is also unclear whether the President could unilaterally declare martial law or if they would first need authorization from Congress.

The President may deploy the military domestically in certain situations and under certain conditions. This is provided for in the Posse Comitatus Act and the Insurrection Act. The Insurrection Act was enacted between 1792 and 1871 but has had 20^th Century amendments.