Can the President Impose Martial Law?

Neither the Constitution nor federal law explicitly authorizes the president to declare martial law. Although the Supreme Court has held that states can declare martial law, it has never specifically held the president can. Therefore, it's unclear whether the president can legally declare martial law. Despite this, several presidents throughout history have done so.

Martial law refers to instances when a nation's armed forces step in and assume the governance of an area. Officials most often impose martial law when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster.

Throughout American history, the federal and state governments have declared martial law over 60 times. The Constitution of the United States does not define martial law and is silent as to who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances."

Some scholars believe the president has the executive power to declare martial law. Others believe the president needs congressional authorization to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its action.

This article begins by providing a general description of martial law and who can declare it. It then describes the limits of its use. It concludes with significant Supreme Court cases interpreting the use of martial law.

Martial Law Explained

As noted above, the Constitution does not define martial law. Instead, its use throughout history has defined its application and limits.

Generally speaking, it refers to when the military temporarily substitutes its authority in place of civilian authority. More simply, it occurs when the army takes over a civilian area and imposes its own rules.

According to national security law scholar Joseph Nunn, martial law is a "dramatic departure from normal practice in the United States." Federal laws usually prevent the military from acting within the country. Although the president can call the military into action to help local governments after a natural disaster, like a hurricane, its help is usually limited. Martial law, as Nunn writes, "turns that relationship on its head," due to the government assuming governance of the area.

When the federal or state governments declare martial law, they suspend all local laws, civil authority, and, sometimes, local judiciaries. In their place, the commanding officer substitutes temporary laws and military tribunals. In short, it gives the military commander virtually unlimited authority to govern an area.

Who Can Declare Martial Law?

The Constitution does not explicitly grant the president the power to declare martial law. Moreover, the Supreme Court has never specifically ruled that the president or federal government can declare martial law. Of note, however, is that almost all state constitutions allow the state governor or legislature to impose martial law.

As the Constitution Annotated notes, there are two competing theories regarding the source of the power to declare martial law:

1. Martial law does not come from any direct authority. Instead, it "arises from the nature of things, being the law of paramount necessity . . .". In other words, it comes from the government's right, power, and/or duty to "maintain public order" and keep the peace.

2. During wartime, "supreme political authority" allows for the valid and constitutional use of martial law. (Luther v. Borden (1849)).

Scholars also argue 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. Articles I and II of the Constitution give each branch some control over America's military forces.

Article II, Section 2, lists the following presidential powers:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The commander-in-chief clause establishes that the president is in charge of the army, navy, and state militias. The modern interpretation of the clause gives the president the executive power to conduct war as they see fit.

Article I establishes Congress, comprised of the House of Representatives and the Senate. Congress has several checks on the executive branch, including the impeachment power. Article I also gives Congress several war powers that act as checks on the commander-in-chief. For example, Congress has the legislative power to:

• Declare war
• Raise and fund armies

Whatever the source of the power, there is no doubt that the president can use it to some degree because several have done so throughout history. More often, states have declared martial law. The real question is, are there limits to martial law? If so, who imposes and/or enforces those limits?

Limitations on the Use of Martial Law

Two federal laws impact the president's ability to declare martial law:

• Congress enacted the Posse Comitatus Act in 1878 following Reconstruction. It prevents the United States military "from participating in civilian law enforcement activities." Its enactment strengthened the separation of powers between Congress and the president. It also bolstered the concept of federalism, which divides power between the federal and state governments.
• The Insurrection Act of 1807 allows the president to deploy military forces to put down rebellions within the United States and deploy the military to help local law enforcement deal with domestic violence. In addition, the president may deploy troops to enforce the law in specific situations. The Insurrection Act is the "primary exception to the Posse Comitatus Act."

When an official declares martial law, the Constitution binds the federal government's actions. Therefore, the federal government cannot infringe upon citizens' constitutional and civil rights under the color of martial law. The Constitution and federal laws also limit states that declare martial law.

For many years, if a state declared martial law, its decision was not subject to judicial review. (Luther; The Prize Cases (1863)). In other words, Article III courts could not adjudicate whether the state's decision was proper. Today, however, the judiciary may hear challenges from citizens regarding the declaration, such as an injunction or a writ of habeas corpus.

Historical Uses of Martial Law in America

This section describes several significant declarations of martial law throughout history. For a full list, read the Brennan Center's Guide to Declarations of Martial Law in the United States.

Andrew Jackson and the War of 1812

The first use of martial law occurred in 1814, near the end of the War of 1812. General Andrew Jackson, who eventually became the seventh president of the United States, declared martial law in New Orleans to defend against an invading British army. When he imposed martial law, he did the following:

• Censored the press
• Enforced a city-wide curfew
• Detained citizens without levying criminal charges against them

After successfully leading the defense of New Orleans, Jackson continued to enforce martial law for two months. In 1815, the Louisiana Supreme Court referred to Jackson's use of martial law as "trampling upon the Constitution and laws of our country."

Once Jackson gave control of New Orleans back to the local government, a judge held him in contempt of court and ordered him to pay $1,000. Jackson paid the fine. However, 27 years later, President Jackson asked Congress to pass a bill that would refund him the money. Congress passed the bill in 1844. As Nunn writes, the bill's passage symbolically endorsed Jackson's use of martial law.

Dorr's Rebellion (1842)

While Jackson was trying to convince Congress to pass the refund bill, the second martial law instance occurred in Rhode Island.

A group of Rhode Islanders were unhappy with the state's constitution due to its restrictions on voting. Thomas Dorr led a movement to adopt a new constitution and declare that it was the state's true government. Dorr and his followers ultimately resorted to violence to assert their claimed authority.

Rhode Island's legislature declared martial law in response to "Dorr's War." The Rhode Island General Assembly assembled the state militia to suppress the rebels.

The Supreme Court ultimately approved the state's declaration of martial law in Luther v. Borden (1849). In that case, Chief Justice Roger Taney wrote that states had an inherent right to declare martial law to defend themselves and promote public safety.

The Court's ruling endorsed the constitutionality of martial law and "finished what Congress had started with the refund bill." However, the decision did not address:

• The legal basis for declaring martial law
• The scope of martial law
• When or under what circumstances states can impose martial law
• Who exactly can declare and impose martial law

In addition, the Court did not hold (and has never held) that the federal government can impose martial law. Nunn notes that the Court has suggested that the federal government may impose it in two different decisions, but neither explicitly held that it could. Therefore, although states can declare martial law, there is no legal basis for the federal government to do so.

The Civil War

During the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. Among other things, the declarations did the following:

• Suspended writs of habeas corpus throughout the United States
• Suspended civil rights throughout the United States
• Allowed the military to arbitrarily arrest and confine people they believed were allied with the South
• Held trials by military tribunals rather than civil or criminal courts ("civilian courts")

Lambdin Milligan was a lawyer from Indiana. A military commission alleged Milligan and others had conspired to free Confederate prisoners from Union war camps, among other things.

In 1864, a military tribunal found Milligan and his co-conspirators guilty and sentenced them to death. In 1865, nine days before the government was going to hang him, Milligan filed a petition for a writ of habeas corpus.

In 1866, the Supreme Court decided Ex parte Milligan. The Supreme Court held that only Congress could substitute military tribunals for civil courts. Because civilian courts were operational in Indiana at the time of Milligan's tribunal, he had a right to be tried in civilian courts rather than the tribunal. The Court also held that Congress can only substitute military tribunals for civil courts during wartime.

After the Civil War, Moyer v. Peabody (1909) led the Court to rethink its position in Ex parte Milligan.

Moyer v. Peabody

Moyer involved a labor dispute in Colorado between mine workers and their employers. As more miners went on strike, the employers sought the aid of Governor James Peabody. He eventually declared martial law. Soon after, the state militia and National Guard began arresting striking workers.

Charles Moyer was arrested for desecrating an American flag. He was released after his arrest, but the commander of the state militia ordered him to be re-arrested the next day due to "military necessity."

Moyer petitioned for a writ of habeas corpus. Although the court granted his writ, the Colorado State Attorney General refused to honor it. Moyer appealed to the Colorado Supreme Court, which ruled that the state had not violated his right to due process. Although Moyer eventually secured his release, he continued to press his case to the U.S. Supreme Court.

Writing for the majority, Justice Oliver Wendell Holmes determined the following:

• The Supreme Court would not determine whether a state of insurrection actually existed in Colorado. He wrote, "the Governor's declaration that a state of insurrection existed is conclusive of that fact." Importantly, Moyer did not argue whether or not an insurrection existed. If he had, the Court could have analyzed the issue.
• Because a state of insurrection existed, and the state's constitution and laws gave the governor the power to suppress rebellions, Peabody had the authority to withhold Moyer without probable cause until the governor determined it was safe to release him.
• The state militia arrested Moyer "in good faith and in honest belief" with regard to suppressing the insurrection. Because the governor acted in good faith, he could not "be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief."

Moyer created the so-called "good faith" test concerning detentions resulting from martial law. If a state actor detained someone in good faith to suppress an insurrection, a court would not review the action.

The good faith test provided broad power to the state officials during a period of martial law. Not only could a state official unilaterally declare martial law, but they could also use the military in "good faith" and escape judicial review.

Sterling v. Constantin

In Sterling v. Constantin (1932), the Court abandoned the good faith test. In its place came the "direct relation" test.

Sterling involved a dispute between oil workers and the state of Texas. In 1931, the state legislature passed a law authorizing the State Railroad Commission to regulate oil production. Days after the law's enactment, the governor of Texas declared martial law in parts of East Texas due to what he called an insurrection.

After declaring martial law, the Commission set oil production limits at all East Texas wells at 225 barrels per day. About a month later, it lowered the limit to 165 barrels. The military enforced these limits in the counties where the governor had declared martial law.

Constantin and other well owners filed a lawsuit in federal court against the Commission, the commanding officer, and others. They argued that the Commission had conspired to arbitrarily limit production to drive up oil prices. The owners argued that such measures amounted to a government taking without due process and violated the equal protection clause. They requested an injunction against the production limits.

The district court judge issued a temporary restraining order prohibiting the defendants from limiting oil production to less than 500 barrels per day from each well. In response, Governor Ross Sterling ordered the military to continue limiting production to 165 barrels. Soon after, the Commission lowered production to 100 barrels per day per well.

The owners amended their lawsuit to include Governor Sterling. The owners argued that the executive and military orders violated both the state and U.S. Constitutions.

At the trial court level, the defendants relied on the Court's holding in Moyer. Specifically, they argued that the governor's declaration of martial law was conclusive, allowed him to use war powers, and that the court did not have jurisdiction while martial law was in effect.

The lower court noted the following:

• At no time had any citizens rebelled or engaged in an insurrection in East Texas.
• The military deployed to East Texas never had to quell any rebellions or riots.
• The civil authorities and courts had remained open and undisturbed during the imposition of martial law.

Based on these observations, the three-judge panel issued a permanent injunction against the Commission. It held that no proclamation, not even martial law, completely protected or insulated state officers from the judicial process.

The Supreme Court affirmed the lower court's judgment. Chief Justice Charles Hughes wrote the following:

"It does not follow that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.'"

The direct relation test examines whether actions taken are directly related to the purposes of martial law. In Sterling, there was no insurrection and civil authorities and courts had remained open. Therefore, there was no direct connection between the enforcement of oil production and the need for martial law. In other words, at least at the state level, actions taken during martial law are not entirely immune from judicial review.

World War II

In the wake of the Japanese attack on Pearl Harbor in December 1941, the territorial governor of Hawaii, Joseph Poindexter, used his statutory authority to declare martial law. By doing so, Poindexter did the following:

• He suspended the writ of habeas corpus throughout Hawaii
• He conferred his governing powers to the local commanding General of the Army
• He conferred the powers of the local judicial officers to the General of the Army
• He censored the media, and the press could only use English

More than one-third of Hawaii's population at the time was Japanese. Within the first two days of Poindexter's declaration, the FBI and military arrested more than 2,000 people. Every adult on the island was fingerprinted, and the government issued everyone a special identification card they had to produce upon request. Other rules included the following:

• A ban on speaking Japanese
• Japanese-born people could not own short-wave radios
• Japanese-born people could not gather in groups of more than 10 people
• Japanese-born people could not move without the military's permission

When Poindexter declared martial law, he said it would last "during the present emergency and until the danger of invasion is removed." President Franklin D. Roosevelt soon approved Poindexter's declaration. Later, Roosevelt used his commander-in-chief powers to put Japanese Americans into internment camps along the West Coast.

Martial law existed in Hawaii until October 24, 1944. However, the military continued to control labor in Hawaii (which at that time was a territory, not a state). Additionally, the government designated some people as "enemy aliens," and martial law still applied to them.

The declaration of martial law in Hawaii led to many lawsuits. In Duncan v. Kahanmoku (1946), the Court reviewed several cases involving the military tribunal convictions of Hawaiian civilians. Duncan was arrested after he got into a fight with two Marines.

The Court ruled that Duncan's conviction by the military tribunal was unconstitutional and ordered the military to release Duncan from custody. Justice Hugo Black wrote the majority opinion, in which he stated the following:

"Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. . . . Legislatures and courts are not merely cherished American institutions; they are indispensable to our government."

The Court noted that although Congress had passed an act allowing the governor to declare martial law, replacing civilian courts with military tribunals went beyond the law's scope.

From the start of the Civil War to the end of World War II, there were at least 60 declarations of martial law in the United States. Most involved a state official declaring martial law—no state legislature has imposed martial law since the 1842 “Dorr’s Rebellion” in Rhode Island.

The federal government has not declared martial law since 1944. The last time a state declared martial law was in Maryland in 1963 during the Civil Rights Movement.