Martial Law During Peacetime

Martial law, an act of last resort, occurs when the military government substitutes the civil government during certain emergencies. 

When a nation declares martial law, civil authority will be suspended and replaced by military rule. This usually happens as a response to a significant disaster. This article gives a general overview of martial law and how the U.S. has used it in the past.

What Is Martial Law?

When it can be invoked and other specifics have not been defined explicitly in American law, however. The Supreme Court, in Duncan v. Kahanamoku, did not explain what the term “martial law" is. However, the martial laws declared in the past carry similar features, including:

  • Military personnel will have the power to enact and enforce civil and criminal laws
  • Certain civil liberties will be suspended
  • Writ of Habeas Corpus may be suspended

When Has It Been Invoked in the Past?

Martial law has rarely been invoked in the U.S. The last time it was used was in Hawaii, following the Pearl Harbor attack. Prior to that, it was used a few times in the early 20th Century. President Abraham Lincoln used it during the Civil war. It was also invoked during the war of 1812 in New Orleans by General Andrew Jackson.

There are also other times where presidents used the military to maintain order, but not under martial law. Rather they used the Insurrection Act, an act that allows presidents to use the military. Some of the instances where this Act was used include:

How Is Martial Law Invoked?

There is no constitutional provision that specifically talks about who has the power to declare martial law. The following Constitutional provisions are, however, often interpreted to allow both the President and Congress to declare martial law.

1) Article I, Section 8, Clause 15 of the Constitution (Congress can declare martial law)

This section of the Constitution states Congress has the power to “provide for calling forth the militia to execute the Laws of the Union, suppress insurrections, and repel Invasions."

2) Article II, Section 2, Clause 1 of the Constitution (President can declare martial law)

This section states, “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."

In addition to the above, governors may also declare martial law in their state, if the state's constitution allows them to do so.

Can a President Declare Martial Law During a Pandemic?

A pandemic may kill more Americans than an actual war. The COVID-19 pandemic, for instance, could kill 100,000- 200,000 Americans, according to the nation's expert on infectious diseases. But is that enough to warrant a declaration of martial law?

Martial law has never been declared as a response to a pandemic in American history. Even though the Supreme Court did not specifically hand out the criteria for declaring martial law, it has highlighted that martial law should only be justified in extreme cases and only as a last resort.

During the COVID-19 pandemic, a number of governors have called up their national guard to help assist with essential duties. But, in such cases, the guards' role was to assist civil authorities, not replace them.

As there is no legal precedent (either in the Constitution or cases) on when the President can declare martial law, it is difficult to answer whether a President can declare martial law for a pandemic. But the possibility of it happening in acute domestic disasters like the COVID-19 pandemic can't be ruled out.

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