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Analysis

Can The President Declare Martial Law In Response To Coronavirus?

The limits of martial law need to be revisited by Congress to clarify when, where and how this presidential power may be used.

Last Updated: April 4, 2020
Published: April 16, 2020

This origin­ally appeared in The Hill.

Recently, a rumor that Pres­id­ent Trump would impose martial law in response to the COVID-19 pandemic went viral. The story gained enough trac­tion that the National Secur­ity Coun­cil stepped in to reas­sure the public it was fake. But Amer­ic­ans, used to dysto­pian films featur­ing govern­ment takeovers of quiet civil­ian life, still wonder: Could it happen here?

The answer is prob­ably no — at least under circum­stances as they now stand.

The pres­id­ent’s power to declare martial law is not nearly as broad as rumors suggest. The states’ powers are greater, but they too are subject to import­ant restric­tions.

Nonethe­less, uncer­tain­ties in the law show the need for Congress and state legis­latures to clarify the scope and limits of martial law.

The concept of “martial law” is not well under­stood, let alone defined, in Amer­ican law. It usually refers to milit­ary forces taking over the func­tions of ordin­ary civil­ian govern­ment. The key words are “taking over.” Although the milit­ary often provides support and assist­ance for certain activ­it­ies performed by civil­ian author­it­ies — such as carry­ing out search-and-rescue missions in the after­math of a natural disaster — actual displace­ment of civil­ian govern­ment repres­ents a dramatic depar­ture from normal prac­tice.

But it has happened.

There was a period in Amer­ican history when martial law was relat­ively common. Between 1857 and 1945, martial law was declared 70 times in the United States. In most cases, a state governor imposed it on a city, county or group of counties. This was some­times in response to viol­ent civil unrest but more often to break strikes on behalf of busi­ness interests. These declar­a­tions lasted anywhere from days to years. Martial law was last declared in the United States in 1966, when the governor of Cali­for­nia imposed it to suppress unrest in the Hunters Point neigh­bor­hood of San Fran­cisco after a white police officer shot a black teen­ager. 

The federal govern­ment has declared martial law too, though far less frequently. Most recently, Hawaii was placed under martial law for the major­ity of World War II. The U.S. Army controlled every aspect of civil­ian life on the islands, from crim­inal justice to curb­side trash removal.

The Supreme Court has addressed martial law in only a hand­ful of cases and has offered little clear guid­ance about where the author­ity to declare it comes from. At the federal level, some schol­ars have argued that the pres­id­ent has inher­ent author­ity under the Consti­tu­tion to declare martial law. The more persuas­ive view is that the pres­id­ent (or certain subor­din­ates) can declare martial law only if Congress has author­ized it. This was the case in Hawaii.

Because the power to declare martial law comes from Congress, Congress controls when, where and how it may be used. It can even take the power away. One limit Congress has placed on martial law — and on the domestic deploy­ment of the milit­ary more broadly — is the Posse Comit­atus Act. This law gener­ally bars federal troops from parti­cip­at­ing in domestic law enforce­ment activ­it­ies, such as arrests and deten­tions. It is not, however, an abso­lute prohib­i­tion on domestic milit­ary deploy­ment.

The Posse Comit­atus Act does not prevent federal troops from assist­ing civil­ian author­it­ies in ways that do not involve law enforce­ment. Federal troops can help with a wide range of disaster response efforts without viol­at­ing the act, such as when they were deployed to clean up debris and distrib­ute relief supplies after Hurricane Katrina. More recently, they have been tasked with perform­ing non-law enforce­ment duties in support of immig­ra­tion enforce­ment at the south­ern border.

And several laws create excep­tions to the Posse Comit­atus Act’s general rule. The most import­ant of these is the Insur­rec­tion Act. It allows the pres­id­ent, at the request of a state’s governor or legis­lature, to use federal troops to suppress an insur­rec­tion in that state. The pres­id­ent may also deploy troops without a state’s request if an “unlaw­ful obstruc­tion,” domestic viol­ence or similar civil unrest is creat­ing barri­ers to execu­tion of the law. Troops may be used either to assist local law enforce­ment or, if neces­sary, to supplant them. In the latter case, the act author­izes a form of martial law, triggered by vague criteria and with few clear constraints on its use.

If viol­ent riots were to break out across the United States due to panic over COVID-19, the pres­id­ent could deploy federal troops under the Insur­rec­tion Act to suppress them. But that seems unlikely. Even coun­tries worst hit by the pandemic have not seen signi­fic­ant civil unrest. If mass riots were to take place, there would still be no need for federal troops to displace civil­ian author­it­ies, as opposed to merely assist­ing them. In other words, there would be no legit­im­ate reason to declare martial law.

The legal frame­work changes when one shifts to the state level. The Posse Comit­atus Act does not apply to the states’ use of their own National Guard forces. Whether a state can use its mili­tia to assist with civil­ian law enforce­ment and whether it can go further and declare martial law depends on what its own consti­tu­tion and laws allow. Many states’ laws author­ize much broader use of the milit­ary than is permit­ted under federal law.

That does not mean governors can do whatever they want. The U.S. Consti­tu­tion still applies under martial law. The states must comply with its require­ments and with the require­ments in their own consti­tu­tions. Although the Supreme Court has said that courts cannot second-guess whether a state governor’s declar­a­tion of martial law is neces­sary, they can review whether the actions taken under that declar­a­tion are consti­tu­tion­ally permiss­ible.

This is also true at the federal level: The courts can review whether the milit­ary’s actions under martial law have crossed a consti­tu­tional line. The Supreme Court did exactly that in the case of Hawaii. Without setting aside the martial law declar­a­tion itself, the Court over­turned the convic­tions of every civil­ian who had been tried by a milit­ary court while the islands were under martial law.

Judges typic­ally allow the govern­ment greater flex­ib­il­ity in a crisis and will weigh the govern­ment’s interest in public health and safety heav­ily when balan­cing it against intru­sions on civil liber­ties. That does­n’t mean those liber­ties disap­pear. It is unlikely, for example, that courts would uphold the use of the milit­ary to enforce quar­ant­ines only on certain ethnic groups.

While martial law is not the unboun­ded power that we often see portrayed in popu­lar culture, the public fears it sparks high­light a real issue: The Supreme Court has left many ques­tions about martial law unanswered, and the laws passed by Congress and the states leave too much room to exploit these uncer­tain­ties.

Once the imme­di­ate health crisis has passed, Congress and state legis­latures should revisit these laws in order to clarify — and appro­pri­ately limit — when, where and how martial law may be used. Until this happens, rumors and misin­form­a­tion about this fright­en­ing exec­ut­ive power will continue.