When Can Martial Law Be Declared in the United States?
Recent events in South Korea, where President Yoon Suk Yeol declared martial law, have sparked discussions about the potential for similar actions in the United States. The short answer is that there is no similar legal path for the U.S. president to declare martial law for the entire country, as it happened in South Korea. But it gets complicated quickly. There have been several instances where a president has declared martial law in the U.S. In addition, almost all state governors have the power to declare martial law for their states, often in response to natural disasters or some other calamity. Generals may also declare martial law during wartime. Martial law has been declared in the U.S. at least 68 times, according to the Brennan Center for Justice.
General Andrew Jackson was the first to ever declare martial law in the U.S. (he was not yet U.S. President when he did so). This occurred in New Orleans during the war of 1812. President Franklin D. Roosevelt did the same in Hawaii after the attack on Pearl Harbor at the request of the governor. President Abraham Lincoln also invoked martial law during the Civil War, although for Lincoln it was Congressionally-imposed.
The United States Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when martial law can be declared. So, how does it work?
Defining Martial Law
Martial law is a somewhat vague legal term for when military authorities take control of civil governance and law enforcement. During martial law, the executive or military leaders may suspend certain civil liberties. It is intended to be reserved for times of extreme emergencies when existing civilian government and law enforcement have ceased to function or become ineffective. The purpose is to create order and control the population to achieve a higher goal. Ideally, it is used to maintain order when a high number of U.S. citizens are in immediate, mortal danger.
Examples of actions that can take place during martial law include curfews for citizens and restricting public gatherings to prevent civil unrest. All civilian laws are suspended for the duration of martial law. Military leaders may create and enforce their own laws, and may detain people and take over local governments and their responsibilities.
Because declaring martial law often involves suspending civil freedoms and constitutional rights, it is rare in the United States. However, it has happened and there is precedent to support it.
Declaring martial law is typically a last resort because it could be easily abused as a political tool to control the population — especially political dissenters. For example, state governors have declared martial law during times of labor unrest, although not recently. But even at the time it was considered controversial.
Laws Surrounding Martial Law and Domestic Troop Deployment
As noted, the U.S. Constitution does not explicitly define when a president can declare martial law, although neither does it specifically forbid it. Neither has Congress passed a law regarding when martial law can be declared (although, as mentioned, Congress itself declared martial law during the Civil War).
There are, however, several laws that specifically allow troop deployment on U.S. soil. In addition, in almost all state governors can declare martial law, a power given to them either by the state constitution or the state legislature.
The Insurrection Act
Using the U.S. military domestically in emergencies isn't necessarily the same thing as declaring martial law, but the line can be blurry. For example, the Insurrection Act is a federal law originally enacted in 1807 that allows the president of the United States to deploy military forces domestically to suppress insurrections, rebellions or domestic violence when it is necessary in order to enforce federal laws and maintain public order.
In other words, this law permits the president to act when he perceives that unlawful conduct or civil rebellions hinder the application of federal laws. This language is quite broad and it hinges largely on the president’s judgment.
President Dwight D. Eisenhower invoked The Insurrection Act to enforce desegregation in Arkansas in 1957. In 1992, the Act was invoked to control civilian violence and public unrest following a controversial case where a Los Angeles court acquitted police officers involved in the beating of Rodney King. These examples demonstrate how the Act can be used in response to domestic problems. However, in neither instance was martial law declared.
National Guard Deployment
Calling in the National Guard is not the same thing as declaring martial law. Both federal and state leaders can call in the National Guard to help during emergencies. The National Guard is unique in that it is controlled both by state and federal leaders. They can be deployed at any time. However, the Guard does not create or enforce its own laws — it is there to assist a state or the federal government in enforcing existing laws, and must respect the civil rights of all civilians during its deployment.
A Little Unclear
U.S. courts have largely remained silent on martial law. However, in 1946 the U.S. Supreme Court held that when civilian courts are in operation, the military cannot substitute military tribunals for civilians accused of non-war crimes. There are few other Supreme Court cases discussing the extent of a president or general's powers during martial law.
It's understandable if you're left feeling a little unclear about when martial law can be declared in the United States. Because it is a rare occurrence, there is not much established legal precedent about it. As an extraordinary remedy for emergencies, there have (fortunately) been only a limited number of times when it has been declared in the U.S., and so far these have all been of limited duration.
Were a president to declare martial law without cause, it's not clear what actions Congress or U.S. citizens could take, and would likely depend on the circumstances. However, Congress does always have the right to impeach a president for an abuse of power, similar to what happened in South Korea. Impeachment is the ultimate legal remedy of the legislative branch.
Related Reading
- Disqualification from Public Office Under the 14th Amendment (FindLaw’s U.S. Constitution)
- The Prohibition on Rebellion and Insurrection (Findlaw's Learn About the Law)
- Does The Insurrection Act Need An Update? (Findlaw's Law and Daily Life)
