Shortly after the start of the American Civil War in 1861, President of the United States Abraham Lincoln took two steps intended to maintain order and public safety in the now-divided country. In his capacity as commander in chief, Lincoln declared martial law in all states and ordered the suspension of the constitutionally protected right to writs of habeas corpus in the state of Maryland and parts of the Midwestern states.
In taking this action, Lincoln was responding to the arrest of Maryland secessionist John Merryman by Union troops. U.S. Supreme Court Chief Justice Roger B. Taney of Maryland had recently issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court for a hearing. Lincoln’s proclamation effectively blocked Justice Taney’s order from being carried out.
Lincoln’s action did not go unopposed. On May 27, 1861, Chief Justice Taney issued his famous Ex parte Merryman opinion challenging the authority of President Lincoln and the U.S. military to suspend the right to a writ of habeas corpus. Referring to Article I, Section 9, of the Constitution, which allows suspension of habeas corpus “when in cases of rebellion or invasion the public safety may require it,” Taney argued that only Congress—not the president—had the power to suspend habeas corpus.
In July 1861, Lincoln sent a message to Congress in which he justified his action, and went on to ignore Taney’s opinion, allowing the suspension of habeas corpus to continue throughout the remainder of the Civil War. Though John Merryman was eventually released, the constitutional question of whether the right to suspend habeas corpus belongs to Congress or the president has never been officially resolved.
On Sept. 24, 1862, President Lincoln issued a proclamation suspending the right to writs of habeas corpus nationwide.
Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike.
“The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.”
What is ‘martial law’?
In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020.
While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended,” according to documents from JRANK, an online legal encyclopedia.
Martial law may be declared by both the president and by Congress. State officials may also declare martial law, according to the Brennan Center for Justice, however, “their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.”
“Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks,” the Atlantic reported. “Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.”
Throughout the course of U.S. history, federal and state officials have declared martial law at least 68 times, according to Joseph Nunn, an expert with the Brennan Center for Justice.
How does it work?
Martial law does have limits. The Posse Comitatus Act, passed on June 18, 1878, prevented federal troops from supervising Confederate state elections during Reconstruction. Though initially it only applied to the Army, it has been amended to include the Defense Department and, of course, the other service branches. That act prevents troops from enforcing domestic law, preventing such actions as searching and seizing property or dispersing crowds. However, National Guard units, which take their direction from state governors, are exempt from the Posse Comitatus Act.
One exception to Posse Comitatus, however, is the Insurrection Act, which allows the use of active-duty or National Guard troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings,” according to U.S. Northern Command.
The text of the Act reads:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”
But activating the National Guard even under federal Title 32 status, in which the federal government helps pay for Guard troops under state control, does not fall under the Insurrection Act, nor does it equate to martial law in ordinary circumstances.
“Governors call the National Guard all the time to respond to a storms or power outages, delivering medical supplies, stuff going on even during COVID,” Banks said. “That’s not extraordinary, nor would it be if the President federalized the National Guard for similar reasons, responding to a need to disseminate vaccines next winter, for example, would be perfectly appropriate, lawful, not martial law.”
Should we be worried?
“The sort of hellish scenarios that some people talk about is one where the president orders or regular military armed forces the United States to take over cities that he believes are engaged in an unlawful election, disruption or protests in the wake of an unresolved presidential election in the days after November 3,” Banks noted.
Though purely a hypothetical, Banks notes that the way it would happen would be through the Insurrection Act. In order to invoke the Insurrection Act, the president “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops,” according to a 2006 Congressional Research Service report.
“One of the important things to remember about the Insurrection Act is that it’s not martial law,” Banks said. “The purpose of utilizing the mechanisms of insurrection act is to enforce the law, not replace it.”
In June, at the height of the protests surrounding the death of a Black man named George Floyd at the hands of a white Minnesota police officer, President Donald Trump alluded to the Insurrection Act as a means of calling up active duty troops to quell civil unrest as protest erupted across the country.
“If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said in a White House statement on June 1 — just before he posed for a photo opportunity outside Washington, D.C.’s St. John’s Church with a bible amid an entourage, which included Joint Chiefs of Staff Chairman Gen. Mark Milley.
Milley publicly apologized for his appearance in Trump’s walk across Lafayette Square to pose for photos in front of a church partially burned during protests.
“My presence in that moment and in that environment created a perception of the military involved in domestic politics,” Milley said. “As a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.”
But while the Insurrection Act is law, the fact that martial law is not codified lands its use in a distinctly grey legal area.
“One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law,” Banks noted. “They can just do it. It’s not sanctioned by law.”
Banks noted that the civilian in charge of the military — in this case, Defense Secretary Mark Esper — is the key to ensuring the military is kept out of the 2020 elections.
“Secretary Esper is in a in a really critical role here,” Banks noted.
Esper addressed this in a memo to the force.
“As citizens, we exercise our right to vote and participate in government,” he wrote. “However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.”
Milley too feels strongly about the necessity of keeping the U.S. military out of politics and the election.
“We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else,” he said in an interview with NPR. “We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.”
As a result of these comments, Banks is optimistic that the worst case election scenario in the event of disputed election results might just be lawsuits in certain states where the outcomes are murky.
“A really important limitation in the event that there is martial law is that it’s highly unlikely to be tolerated in a situation where our civilian institutions are working,” Banks noted. “Martial law requires a complete meltdown. It requires the inability of our civilian institutions to manage government. It’s hard to imagine that.”