Martial law in the United States refers to times in
United States history in which in a region, state, city, or the whole
United States was placed under the control of a military body. On a national level, both the
US President and the
US Congress have the power to impose
martial law since both can be in charge of the militia.
[1] In each state, the governor has the right to impose martial law within the borders of the state.
[2] In the United States, martial law has been used in a limited number of circumstances, such as New Orleans during the
Battle of New Orleans; after major disasters, such as the
Great Chicago Fire of 1871, the
1906 San Francisco earthquake, or during riots, such as the
Omaha race riot of 1919 or the
1920 Lexington riots; local leaders declared martial law to protect themselves from mob violence, such as
Nauvoo, Illinois, during the
Illinois Mormon War, or
Utah during the
Utah War; or in response to chaos associated with protests and rioting, such as the
1934 West Coast waterfront strike, in Hawaii after the
Japanese attack on Pearl Harbor, and during the
Civil Rights Movement in response to the
Cambridge riot of 1963.
The martial law concept in the United States is closely tied with the right of
habeas corpus, which is, in essence, the right to a hearing and trial on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend
habeas corpus is related to the imposition of martial law.
[3] Article 1, Section 9 of the
US Constitution states, "The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." There have been many instances of the use of the military within the borders of the United States, such as during the
Whiskey Rebellion and in the South during the
Civil Rights Movement, but those acts are not tantamount to a declaration of martial law. The distinction must be made as clear as that between martial law and
military justice. Deployment of troops does not necessarily mean that the civil courts cannot function, which is one of the keys, as the
US Supreme Court noted, to martial law.
In
United States law, martial law is limited by several court decisions that were handed down between the
American Civil War and
World War II. In 1878,
Congress passed the
Posse Comitatus Act, which forbids
US military involvement in domestic law enforcement without congressional approval.
Throughout its history the United States underwent several examples of the imposition of martial law, aside from during the
American Civil War.
The
National Emergencies Act (
NEA) (
Pub.L. 94–412, 90
Stat. 1255, enacted September 14, 1976, codified at
50 U.S.C. § 1601–1651) is a
United States federal law passed to end all previous
national emergencies and to formalize the emergency powers of the President.
The Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers. The perceived need for the law arose from the scope and number of laws granting special powers to the
executive in times of national emergency.
Congress can terminate an emergency declaration with a joint resolution signed into law.
[1] Powers available under this Act are limited to the
136 emergency powers Congress has defined
by law.
[2]
The legislation was signed by President
Gerald Ford on September 14, 1976.
[3] As of March 2020,
60 national emergencies have been declared, more than 30 of which remain in effect.
Termination of presidential authority
A prior Senate investigation had found 470 provisions of federal law that a President might invoke via a declaration of emergency.
[14] The Act repealed several of these provisions and stated that prior emergency declarations would no longer give force to those provisions that remained. Congress did not attempt to revoke any outstanding emergency declarations
per se, as these remained the President's prerogative under
Article Two of the United States Constitution.
[15]
Procedure for new emergencies and rescinding emergency declarations
The Act authorizes the President to activate emergency provisions of law via an emergency declaration on the condition that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency. After presidents objected to this "Congressional termination" provision on
separation of powers grounds, and the Supreme Court in
INS v. Chadha (1983) held such provisions to be an unconstitutional
legislative veto,
[16] it was replaced in 1985 with termination by an enacted
joint resolution. A joint resolution passed by both chambers requires presidential signature, giving the president veto power over the termination (requiring a
two-thirds majority in both houses in the case of a contested termination).
[17] The Act also requires the President and executive agencies to maintain records of all orders and regulations that proceed from use of emergency authority, and to regularly report the cost incurred to Congress.
Exceptions
Certain emergency authorities were exempted from the act at the time of its passage:
- 10 USC 2304(a)(1) – allowing exemption of national defense contracts from competitive bidding
- 10 USC 3313, 6386(c) and 8313 – regulating the promotion, retirement and separation of military officers
- 12 USC 95(a) – regulating transactions in foreign gold and silver
- 40 USC 278(b) – regulating federal property purchases and contracts
- 41 USC 15 and 203 – limiting the assignment of claims against the federal government
- 50 USC 1431–1435 – enabling the President to make national defense contracts outside of otherwise applicable rules
The list of exceptions has from time to time been revised. For example, Public Law 95-223 (1977) repealed the emergency clause of 12 USC 95(a) and arranged for its authority to expire according to the normal provisions of the NEA.
Emergency powers
Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an
executive declaration with no further Congressional input.
[2]
Exclusions and limitations
There are a number of situations in which the Act does not apply. These include:
- National Guard units, state defense forces, and naval militias[14] while under the authority of the governor of a state. However, only the National Guard can be federalized under 10 U.S.C. § 12406, which shifts control from the state governor to the President, making them subject to the Posse Comitatus Act as well.
- Federal troops used in accordance to the Insurrection Act, as was the case with the 1st Marine Division and 7th Infantry Division being sent to curtail the 1992 Los Angeles riots.
- Under 18 U.S.C. § 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if domestic law enforcement is inadequate to address certain types of threats involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness. The only exemption is the deployment of nuclear materials on the part of the United States Armed Forces.
- Provide surveillance, intelligence gathering, observation, and equipment for domestic law enforcement on operations such as drug interdiction and counter-terrorism missions. For example, Delta Force soldiers from Fort Bragg were deployed upon request by the Federal Bureau of Investigation to serve as sniper/observer teams, run communications, provide medical support, gather intelligence, and conduct assistance in explosive breaching during the 1987 Atlanta prison riots.[15]
