Definition of Military Martial Law

Federal troops can be used to enforce law and order without an official declaration of martial law. In the United States, they were used at least 14 times under the Insurrection Act before the 1990s and 23 times since 1992 under the Posse Comitatus Act, according to the Congressional Research Service. The Icelandic Constitution does not provide for a mechanism for the declaration of war, martial law or a state of emergency. The Supreme Court has never made it clear whether the federal government has the power to declare martial law and, if so, whether the president can declare it unilaterally or whether it would require congressional approval. The 1952 Supreme Court decision in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing the exercise of executive power — and would likely be used by a court to determine whether a president`s declaration of martial law has exceeded executive power. Moreover, calling in the military to replace the police can produce disastrous results, even with the best of intentions. Soldiers are trained to fight and destroy an enemy that usually has no constitutional rights. As such, they are ill-suited to perform police tasks. Forcing them to play this role can increase the risk of violence.

footnote17_in3wfl1 17 For example, just look at the Kent State massacre in 1970 or the incidents during the military operation in Los Angeles during the 1992 riots. Howard Means, 67 Shots: Kent State and the End of American Innocence (Boston: Da Capo Press, 2016); and Jim Newton, “Did Bill Barr Learn the Wrong Lesson from the L.A. Riots? Politico, June 9, 2020, www.politico.com/news/magazine/2020/06/09/william-barr-los-angeles-riots-307446. In the words of a member of the Minnesota National Guard who will be deployed in response to the protests that followed the murder of George Floyd, “We are a combat unit that is not trained to combat unrest or deal safely with civilians in this context. soldiers from top to bottom are afraid of hurting someone. footnote18_x3nf76y 18 Ken Klippenstein, “Exclusive: Army Monitors Protests in 7 States,” Nation, May 30, 2020, www.thenation.com/article/society/national-guard-defense-department-protests/. The Posse Comitatus Act, first enacted in 1878, essentially prohibits federal forces from assisting national law enforcement unless the president has directed operations under the Insurrection Act or related laws. This is the legal precedent used today in most military activities in civilian activities. Moreover, the Supreme Court`s precedent is too old, sparse and contradictory to offer certainty about martial law. In the absence of legislation dealing specifically with martial law, even the above principles are subject to conflicting interpretations and would likely be challenged by law enforcement officials seeking to deploy military forces more aggressively. The exact scope and limits of martial law will therefore remain dangerously unclear until Congress and state legislatures pass new laws that better define them. The law governing the application of martial law by states is relatively simple.

The Supreme Court has explicitly ruled that each state has the power to declare martial law. footnote1_j8rny2g 1 Luther, 48 USA to 45-46. The Posse Comitatus Act does not apply to States and therefore does not affect their ability to use their armed forces for the application of national law. footnote2_cccmri9 2 Elsea, Posse Comitatus Act, 61–62n419. Instead, a declaration of state martial law is only valid if it is authorized by the state`s constitution or laws. footnote3_jmcof3o 3 pounds sterling, 287 UNITED States to 403-4; Moyer, 212 U.S. at 84-85; and Luther, 48 U.S. at 45-46. But nothing about Hawaii was normal in 1942. It has been under martial law since the Japanese attack on Pearl Harbor in December 1941. footnote2_0yaj4bo 2 Although Hawaii is an incorporated territory and not a state, the Supreme Court ruled in 1942 that the Constitution was fully applicable there and that the legality of martial law should be analyzed as if it were a state. Duncan, 327 U.S.

to 319. Its courts were closed and replaced by military courts. The rules of daily life were not set by an elected legislature, but by the military governor. The military controlled all aspects of life on the islands, from criminal justice to parking areas to roadside garbage disposal. footnote3_p39labe 3 Harry N. Scheiber and Jane L. Scheiber, Bayonets in Paradise: Martial Law in Hawai`i during World War II (Honolulu: University of Hawai`i Press, 2016). Although discussed in some legal discussions, martial law can also occur in stages without ever achieving a complete takeover by the military. Under current U.S.

law, the president, Congress, or a local military commander may, in certain circumstances, impose martial law. What is martial law? Although there is no universal definition, the term often refers to the use of the military for law enforcement. But contrary to popular belief, it`s not necessarily the same to call on federal or state military personnel to help implement martial law in the event of a natural emergency or civil unrest. At the time, almost everyone rejected Jackson`s theory, which is perhaps not surprising. The founding generation was deeply suspicious of military might. This suspicion is reflected in the Declaration of Independence, in which King George III. is accused of making the army independent and superior to civilian power” – and in the Constitution, which divides war powers between Congress and the president and requires that the commander-in-chief always be a civilian. footnote8_uj3uepq 8 Vladeck, “Emergency Power and the Militia Acts,” 156-58 In its explicit terms, section 253 provides for a situation in which civilian authorities do not need the assistance of the military to enforce the laws, but simply do not enforce them. Accordingly, the President may send troops to suppress any insurrection or other violence that results in the deprivation of a part of the population of that State of a constitutional right. So if Section 253 troops are deployed, they will assume the role of civilian government, at least to some extent.

However, the genesis of Article 253 shows that it is preferable to understand it as allowing the army to replace only the local police, in the service of laws duly promulgated by the civilian authorities. footnote9_tr09oyk 9 What is now 10 U.S.C. § 253 appeared to be section 3 of the Ku Klux Klan Act of 1871. Civil Rights (Ku Klux Klan) Act of 1871, chap. 22, 17 Stat. 13. The legislative history of the bill shows that Congress intended Section 3 to authorize the military to assume the role of local police, but no more. Cong. Globe, 42d Cong., 1st Sess. at 567–68 (1871) (Statement by Senator Edmunds). In addition, the House version of section 4 of the bill explicitly authorized the president to declare martial law, but this language was removed before the bill was sent to the Senate. See Cong.

Globe, 42d Cong., 1st Sess. at 317 (1871) (Statement by Mr. Shellabarger); and Cong. Globe, 42d Cong., 1st Sess. at 478 (1871) (Statement by M. Shellabarger). The fact that Congress reviewed and removed the language of martial law shows that it was aware of martial law and chose not to approve of it or found that it did not have the authority to do so.