There’s been a lot of talk about martial law recently, particularly in the news. There’s no playbook for what we’re seeing happening in the US right now – never mind the world. So, what exactly is martial law, what are the rules, and what can we expect to see if this does happen?
Technically there are no laws governing when martial law can be enacted.
Since it was meant to be used during times of emergency, the constitution leaves this “emergency” up for interpretation. After all, our founding fathers were not crystal balls. They couldn’t predict the future, so they decided not to make the laws too constricting.
Which is fair on their part, but it leaves most of us with more questions than answers. Questions like…
Who Declares Martial Law?
Martial law was used quite a bit by our earliest presidents and founders. Since it’s supposed to be used in emergency situations, there aren’t a whole lot of rules regulations or otherwise governing when it can be used.
However, state Senators and Governors can request the assistance of the government to help them bring a situation under control. Which is, usually, the most ideal scenario. It generally means the majority of the population is under stress and they’re looking toward their state officials to call in the big guns.
No poorly timed pun intended, I promise.
When Was Martial Law Declared In History?
Martial law is usually declared during riots and wartime.
For instance, President Jackson deployed federal troops to Detroit in 1967 during a riot. He did so once more to Detroit amid violence during the Democratic convention in 1968. In both instances, he had the blessing of the state and cities where he was deploying troops.
Similarly, California also requested and received federal troops during the Los Angeles riots in 1992.
Right now, what we’re seeing is the states backing their citizen’s outrage while our president denies it. Though, yes, these riots can – and have – been violent, the majority of these protests are peaceful. And the peaceful protests have been met with brute force.
However, most people are under the assumption that states and cities need to give consent for the military to become involved. They don’t. Additionally, in light of all recent events, people tend to think of martial law as a scary and horrible thing.
I can appreciate that, but history can paint martial law in a more positive light as well. For example, the protection of The Little Rock 9 in Arkansas.
President Eisenhower sent the first airborne division to Little Rock, AK against the state’s vehement protest of their intervention. This was to force desegregation in schools in 1957. President Kennedy also federalized the National Guard to force integration of the University of Alabama in 1963, also with state objections.
Martial law was also declared when Pearl Harbor was bombed. Though with mixed reactions based on the protection that it offered some citizens and the human rights violations experienced by those of color. This was also done without consent of the states in most cases since it was, obviously, a pretty big deal.
When Can Martial Law Be Declared?
Again, the constitution and other laws are a bit shady about when and how martial law can be declared. As in: there aren’t any rules.
However, when the government decides to intervene against the state’s wishes, and starts to detain people (again, against state wishes) it’s up for the supreme court to decide if it’s warranted. As a reminder, the legislative, executive, and judicial branches of the government have – or are supposed to have – equal say in what happens.
This means that the Supreme Court system can, indeed, overthrow Trump’s orders if they feel it’s necessary to do so.
Martial Law Throughout History
Post-Civil War there was, obviously, a lot of disagreement about what happened. There was a lot of lawbreaking, disowning of the government, riots, and just general chaos. In an 1866 decision, ex parte Milligan, the Supreme Court justices used excessive language to drive home a point about lawful detainment by our government.
Particularly when civil unrest is afoot.
“[The country] has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.”
Despite what sounds like a promising start by the court, they ultimately ruled to allow the detention of citizens because, as Justice Oliver Wendell Holmes wrote, “[a governor may seize] the bodies of those whom he considers to stand in the way of restoring peace.”
And, again, this leaves some things open to interpretation. And not small things either.
Things like “stand in the way,” “emergency,” and the definition of “peace.” There are no hard and fast rules as to what will be ruled by a judge if we see this happen again. But, as a reminder, this is only allowed in emergency situations and ends after peace is restored. In theory.
But, again, this was in the 1800s. And I can hope – for all our sake – that some collective thinking has evolved since then.
Can The Government Legally Force Mass Quarantine?
Short answer; yeah, totally.
And it doesn’t even have to be the federal government if that’s what you’re thinking. Each state has the power to make it happen without the enforcement of the government. Though it’d be unlikely that they could accomplish it without enlisting the military.
The military could enforce mandatory quarantine and arrest and prosecute anyone who broke the law. However, that’s always been within the state’s power and has nothing to do with martial law (sorry to burst that bubble.)
In fact, it’s within the state’s power to create any sort of quarantine protocols. Though they’re more likely to use what law enforcement resources they already have handy. People like police officers and state troopers instead of the national guard, at least initially.
But in any case, it’d be expensive and prohibitively complicated. And, thus, that outcome is super unlikely.
Did Trump Declare Martial Law?
No. But kind of?
I mean… it’s Trump; the master of verbal and written loophole. And, in typical Trump fashion, he didn’t commit to saying or declaring anything. (And cue the hate comments!)
He did, however, encourage state Senators and Governors to “… Deploy the National Guard in sufficient numbers that [the National Guard will] dominate the streets.” He then went on to threaten states that didn’t head his warning. He said that if states couldn’t control their citizens and keep them safe, he would deploy the National Guard for them.
Which he did.
However, by choosing to deploy the Nation Guard as threatened, he did essentially invoke martial law. But without officially declaring it.
Now, if he had officially declared it, the courts would have the last word. Especially when it comes to the great writ of habeas corpus. The courts must remain open even during dire emergencies.
Now, if the president were to declare martial law and have the military detain protesters, no one really knows what would happen. However, as of writing this, it hasn’t been declared.
But we are teetering dangerously close to the brink.
Quick Note About International Law & Martial Law:
If there was ever such a time that the UN – or other nations – thought that our government was breaking international law, we could potentially see other nations coming over to intervene.
For example, if other nations thought that our general population was in danger, having our human rights violated, or generally deemed it appropriate to intervene, then they would. But I have to caveat this with the fact that they would likely do so as diplomatically as possible. Invading the US would be a difficult thing for even someone who wanted to help.
And with the rest of the world facing a similar crisis, it’s unlikely that anyone would care about what’s happening in the US enough to intervene right now.
Rules About Martial Law
There are a few rules about martial law. One of which is the Posse Comitatus Act. Which, in short, is the law that says active military cannot be deployed in the US to bring back peace. Additionally, anyone detained during martial law – even when we’re essentially operating under military law – cannot be tried in a military court for any supposed crimes.
Everyone who is arrested or detained – by the military or otherwise – must be tried as a civilian. Because, duh, we are.
The Posse Comitatus Act:
The Posse Comitatus Act (PCA) does not apply to the U.S. Coast Guard, or to the National Guard in Title 32 or State Active Duty status. Although the PCA prohibits only the Army and Air Force as from performing domestic law enforcement activities, another statute, 10 USC Section 275, requires the Secretary of Defense to prescribe regulations to prohibit members of the Army, Navy, Air Force, or Marine Corps from direct participation in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law. Department of Defense Instruction 3025.21 implements the prohibitions required under the PCA and 10 USC Section 275.
This is to say that only certain branches of the military can be deployed to bring back a reasonable level of peace. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
However, like anything in our constitution or laws, particularly about the intervention of our governments, this act has a ton of loopholes.
Should You Be Worried About It?
Look, I can’t tell you how to live your life.
But I can tell you but if you’re asking this question, the answer is probably yes. If this is something that concerns you now, this is something you should probably keep an eye on.
Now, I’m not saying panic. But I am saying take care of you and your family and stay informed. That means brushing up on your legal knowledge the best you can – and not from the news. Look at unbiased legal resources.
Know your rights, keep up on the news, but don’t get so wrapped up in it you lose your mind. Again, this is a temporary order, and that’s how it was always intended to be used. So at the end of the day, at some point, this will end.
Here are some more articles to help you brush up on laws that are important right now: