Develop and improve products. List of Partners vendors. Martial law is a law administered by the military rather than a civilian government. Martial law may be declared in an emergency or response to a crisis, or to control occupied territory.
The declaration of martial law is a rare and momentous decision for a civilian government to make and for a good reason. When martial law is declared, civilian control of some or all aspects of government operations is ceded to the military. This means that, in the case of elected governments, the representatives chosen by the voting population are no longer in power. Civilians have thus ceded control of the country in exchange for the potential restoration of order with the possibility that control may not be reclaimed in the future.
When martial law is declared, civil liberties, such as the right to free movement, free speech , or protection from unreasonable searches, can be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal. Civilians may be arrested for violating curfews or for offenses that, in normal times, would not be considered serious enough to warrant detention.
Laws relating to habeas corpus that are designed to prevent unlawful detention may also be suspended, allowing the military to detain individuals indefinitely without the possibility of recourse.
Considering the negative ramifications martial law can have on a country and its citizens, declaring martial law is a last resort reserved for situations where law and order are rapidly deteriorating. For example, in , the governor of Idaho instituted martial law after a group of rebellious mine workers blew up a mill, which leveled a four-story building and killed several people.
Typically, the power to declare martial law rests with the president. For example, a president may be authorized to declare martial law during a time of violent civil unrest, but only for 60 days. The defining feature of martial law is the displacement of the civilian government by the military. When martial law is in effect, military commanders, not elected officials, make laws; soldiers, not local police, enforce laws; and ordinary citizens accused of defying martial law might face military tribunals instead of civilian courts.
Civilian governments rarely invoke martial law. Since the United States was founded in , government officials have declared martial law roughly 68 times. Federal and state authorities are much more likely to request "domestic military assistance," which is not the same as martial law. Domestic military assistance supports, rather than supplants, civilian government.
For example, in the aftermath of Hurricane Katrina in , federal troops used military helicopters to conduct search and rescue missions that local governments were unable to do themselves. In , President George H. Bush deployed the National Guard to help state and local law enforcement suppress riots in Los Angeles.
Historically, state governors are most likely to declare martial law in cities and counties in their jurisdictions. The federal government's authority to invoke martial law is less settled and has been used sparingly. The United States Constitution doesn't explicitly mention martial law. No federal statute or U.
Supreme Court decision clearly states who has the authority to declare martial law and under what circumstances. On June 1, , as unrest surged in cities across the nation after the killing of an African American named George Floyd by Minneapolis police, President Donald Trump went to the Rose Garden of the White House to make a startling announcement.
As protesters thronged in the streets outside the compound's fence, Trump ordered governors and mayors to stop the disturbances.
He added that he already was dispatching "thousands and thousands of heavily armed soldiers" and other personnel to stop violence in the nation's capital. Sources told NBC News that Trump was considering evoking the Insurrection Act, a law passed back in and expanded in , which gives the president authority to use U.
Critical commentators quickly responded that Trump had overstepped his authority. Nevertheless, the words "martial law" and the hashtag " MartialLaw" began trending on Twitter, as critics of the president began claiming that it was the first step in a military takeover and suspension of democracy. So what is martial law, exactly that some are so worried about? Imposition of martial law, in which military forces take over the authority and functions of civilian government, is something that's happened in other countries, such as Thailand and Pakistan.
But it has never been imposed in the United States on a nationwide basis. Though martial law is technically allowed by the U. Constitution, experts say that federal law bars the military from seizing authority over an area inside U. The U. Essentially, "it's against American law to have martial law," Dov Zakheim , a former under-secretary of defense in the George W.
Bush administration who now is vice chairman of the board of trustees at the Foreign Policy Research Institute , explained in a phone interview in March. He cited the Posse Comitatus Act , an statute that in most instances bars military forces from being used in law enforcement activities. He maintains that "anybody who talks about martial law doesn't know what they're talking about. Though the U. In some instances that deployment is authorized by the president under Title 32, which means that although the forces stay under state command, the federal government pays for the expense.
In the U. Generally that means that National Guard forces do things such as distribute food and medical supplies. For example, in Arkansas and several other states, guard members have been staffing the call centers for medical information lines and setting up local centers where sick people are being tested for COVID But there is a legal exception under which the National Guard can be deployed to enforce laws or maintain order.
In , Congress passed the Insurrection Act , which gave the president the authority to use military forces to suppress a revolt against the government. But it's not clear how far that power really extends, as this Congressional Research Service report explains.
Just two years after the law was amended, the George W. Bush Administration's Office of Legal Counsel issued an opinion, saying that invoking Insurrection Act powers "would require the presence of an actual obstruction of the execution of federal law or a breakdown in the ability of state authorities to protect federal rights.
When it comes to military involvement in judicial functions, the analysis changes, and the law is characterized by profound uncertainty. While the Calling Forth Clause expressly contemplates the use of military forces to execute the law, no provision of the Constitution authorizes the military to perform the functions assigned to the judicial branch under Article III.
In one part of the opinion, the Court firmly asserts that emergency conditions can never justify exceeding the bounds of the Constitution.
But the larger issue is that a necessity exception to the Constitution is impossible: it is a fundamental principle of U.
Carter Coal Company, U. Maryland, 17 U. Madison, 1 Cranch In any event, even if the necessity-based exception articulated in Milligan were considered to be authoritative, it would be extremely narrow. The possibility of using martial law to replace civilian courts with military tribunals should not be confused with the rule established by Ex parte Quirin in Quirin and a handful of more recent Supreme Court decisions related to the U.
These individuals, the Court has held, are subject to the international law of war. Offences against the Law of Nations. These decisions are not about martial law. They demarcate the line between military and civilian jurisdiction, rather than allowing the military to exercise jurisdiction in an area ordinarily reserved for civilian courts.
No existing federal statute explicitly authorizes the president to declare martial law. Virgin Islands to declare martial law under certain circumstances. Neither statute grants any power to the president. However, there are a number of statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically.
The most important of these is the Insurrection Act. Rather than a single package of legislation, the Insurrection Act consists of a series of statutes that were enacted between and , with a few amendments in the 20th century.
The act and parts of the act contained sunset provisions, and are no longer in force, but their text and legislative history remain instructive. The first two, Sections and , are relatively straightforward and mirror the language of the Calling Forth Clause.
Nothing in the plain language of Sections and indicates that they authorize martial law. Rather, it contemplates that the military may assist overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group.
Section suggests a more expansive power: it allows the military to enforce federal law, not just to suppress an insurrection. Nonetheless, it still does not imply that the military may push aside the civilian authorities.
In its decision in Duncan , the Supreme Court made clear that when a statute authorizes the military to encroach on the affairs of civilian government, the Court will interpret it extremely narrowly. Because Section does not expressly authorize the displacement of civilian authorities, it should not be read as license to turn the normal relationship between civilian and military power on its head. Instead, it should be understood merely as authorization for the military to assist civilian government officials when they are overwhelmed by forces attempting to obstruct law enforcement and judicial proceedings.
Section is the only substantive provision of the Insurrection Act that might, on its face, be read to authorize a limited form of martial law. In any situation covered by clause 1 , the State shall be considered to have denied the equal protection of the laws secured by the Constitution. As in Section , the desires of the state are irrelevant. By its express terms, Section contemplates a situation in which, rather than needing help from the military to enforce the laws, the civilian authorities are just not enforcing them.
As a result, the president may send in troops to suppress whatever insurrection or other violence is causing a portion of the people in that state to be deprived of a constitutional right. Thus, if troops are deployed under Section , they will, to some extent at least, take over the role of the civilian government.
However, the legislative history of Section indicates that it is best understood as allowing the military to supplant only the local police, and to do so in service of laws duly enacted by civilian authorities. Globe, 42d Cong. Moreover, the House version of Section 4 of the act explicitly authorized the president to declare martial law, but this language was removed before the bill was sent to the Senate.
See Cong. Shellabarger ; and Cong. The fact that Congress considered and removed the martial law language demonstrates that it was aware of martial law and either chose not to authorize it or determined that it lacked the power to do so. The Insurrection Act is an exception to the Posse Comitatus Act, but there are also some circumstances in which the latter law simply does not apply. As part V of this report explains, the Posse Comitatus Act does not affect the ability of states to call up their National Guard forces and deploy them within their own borders.
The Posse Comitatus Act also does not apply when National Guard forces are activated in what is known as Title 32 status, in which the troops remain subject to state command and control, but are used for federal missions and are typically paid for by the federal government. On its face, Title 32 appears to authorize a fairly limited set of activities relating to drug interdiction and counter-drug activities, homeland security protection, and training exercises.
In early June , however, U. Barr to D. In short, no existing statute authorizes the president to declare martial law. Congress has given the president considerable authority, however, to use troops domestically to assist in civilian law enforcement activities.
Deploying troops under the Insurrection Act might not raise all of the same concerns that would be associated with a declaration of martial law, but there is reason to worry whenever a president uses the military as a domestic police force — particularly without the consent of the state to which the armed forces are sent. To start, using the military to enforce the law flies in the face of American tradition.
The Founders were deeply suspicious of the very idea of a national standing army, believing that it could be used as an instrument of oppression and could pose a threat to the autonomy of the individual states. They worried that a president equipped with a ready and loyal army would be able to subvert democracy and impose his will on the states and the people. Moreover, even with the best of intentions, asking the military to stand in for the police can yield disastrous results.
Soldiers are trained to fight and destroy an enemy, one that generally lacks constitutional rights. As such, they are poorly suited to performing the duties of police. Forcing them into that role can increase the risk of violence. Soldiers up and down the ranks are scared about hurting someone. Even if Congress were to authorize martial law, and the Supreme Court were to uphold its power to do so, the Constitution would still apply.
Congress, the president, and the Supreme Court are bound at all times by the Constitution and possess only the powers it confers. None of those powers allows the government to suspend or violate constitutional rights by martial law or by any other means. For the most part, however, the rights conferred by the Constitution are not absolute. When courts decide whether those rights have been violated, they consider the circumstances —including not only the impact on the individual whose rights are affected, but also the interests of the government — and there is often a balancing involved.
Knights, U. FCC, U. In the kind of emergency that would justify the declaration of martial law, the government might not have to provide the same comprehensive procedures required in ordinary times before detaining someone or confiscating property. But the right to due process remains, along with all other constitutional rights, and the federal courts have the power to decide whether they have been violated.
At a minimum, in a state or territory that the federal government has placed under martial law, individuals who have been detained by the military may ask a federal court to order their release by petitioning for the writ of habeas corpus. When determining whether the military has exceeded its statutory authority, courts will construe that authority narrowly. Usually, the term martial law refers to the military taking the place of civilian authorities.
The Court explained that martial law has never been precisely or conclusively defined. The Court concluded that, because these principles are deeply engrained in U. For instance, a statute might expressly authorize the use of military tribunals to try civilians in areas where an invasion has resulted in the closure of the courts and the government has declared martial law.
The Supreme Court has expressly held that individual states have the power to declare martial law. The Posse Comitatus Act does not apply to the states and thus does not affect their ability to use their military forces for domestic law enforcement.
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