The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively.
When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it. Insofar as the Supreme Court has said anything on these questions, its statements have been inconsistent. Diekelman, 92 U. Note that both the portion of Luther that Chief Justice Stone cites and the rest of his opinion directly contradict his own opening proposition.
During World War II, the Court assumed without deciding that Congress could authorize a federal declaration of martial law but did not make clear whether that authorization was required. In contrast, in a much earlier but influential concurring opinion, Chief Justice Salmon Chase did conclude that federal martial law exists and that it must be authorized by Congress. It is also old: even the most recent Supreme Court decision on martial law — Duncan v.
Kahanamoku , decided in — predates many significant developments in U. Sawyer, U. Ohio, U. United States, U. Connecticut, U. Arizona, U. Rumsfeld, U. Bush, U. The precedents thus provide little help in determining the legal basis for martial law — or, assuming that federal martial law is even permissible, whether its use is controlled by Congress or the president. Texas, U. Regan, U. Consider, for example, if the president were to declare martial law over the U. In that hypothetical scenario, a federal court would likely apply Youngstown to decide whether the president had exceeded executive authority.
Under Youngstown , the courts show varying degrees of deference to presidential action, depending on whether the president is acting in accordance with or contrary to the will of Congress. The court will uphold the action unless the federal government, as a whole, lacks the power to act. These actions are impermissible unless Congress has overstepped its own powers. This language acknowledges the possibility that martial law might exist as an emergency power, despite the lack of any express provision for it in the Constitution.
It does not, however, suggest where that power lies, and certainly does not indicate that it belongs solely to the executive branch. Nor does it render the three-zone test inapplicable in the context of martial law. We start with what Congress has said: Congress has legislated so extensively with respect to the domestic use of the military — through, for example, the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non Detention Act, and various other provisions within Title 10 of the U.
Furthermore, the Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities — even if they are merely supplementing rather than supplanting civilian authorities — except when doing so is expressly authorized by Congress.
The Posse Comitatus Act nominally allows for constitutional exceptions to its general rule, but none exists. As it is generally understood, martial law necessarily involves military participation in civilian law enforcement. While there are a number of statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law, as part III of this report explains.
Barreme, 6 U. In other words, when Congress and the president disagree, Congress wins. The critical question, then, is how the Constitution allocates the powers related to domestic deployment of the military.
The balance of power established by these provisions decisively favors Congress over the president. Instead, it grants authority to the federal government as a whole.
Furthermore, it only allows unilateral federal action in the case of invasion. Lastly, the Commander in Chief Clause would not enable the president to unilaterally declare martial law in disregard of the Posse Comitatus Act and other statutes that regulate the domestic use of the military.
To start, the Commander in Chief Clause is not a source of domestic regulatory authority for the president. In domestic affairs, both generally and with respect to the role of the military, the Constitution envisions Congress as the branch in control. If a foreign enemy launches a sudden attack inside the United States, it is generally understood that the president may act to repel that attack, even if Congress has not given its blessing. But the former power is quite limited, and the latter relies on prior congressional authorization.
Accordingly, a unilateral declaration of martial law by the president today — on the southern border or elsewhere — would not survive a legal challenge under Youngstown.
It bears emphasizing that this conclusion is compelled partly by the Constitution and partly by federal law. It is possible that, in the absence of the Posse Comitatus Act and other laws regulating domestic military activity, the president could rely on some independent executive power to declare martial law.
But that scenario is hypothetical and the likely legal outcome is uncertain. The reality is that the domestic role of the U. In the imagined scenario described earlier, the president set up military tribunals to try violators of federal immigration law.
The Posse Comitatus Act, however, only applies to military participation in law enforcement. When it comes to military involvement in judicial functions, the analysis changes, and the law is characterized by profound uncertainty. While the Calling Forth Clause expressly contemplates the use of military forces to execute the law, no provision of the Constitution authorizes the military to perform the functions assigned to the judicial branch under Article III.
In one part of the opinion, the Court firmly asserts that emergency conditions can never justify exceeding the bounds of the Constitution. But the larger issue is that a necessity exception to the Constitution is impossible: it is a fundamental principle of U. Carter Coal Company, U. Maryland, 17 U. Madison, 1 Cranch In any event, even if the necessity-based exception articulated in Milligan were considered to be authoritative, it would be extremely narrow.
The possibility of using martial law to replace civilian courts with military tribunals should not be confused with the rule established by Ex parte Quirin in Quirin and a handful of more recent Supreme Court decisions related to the U. These individuals, the Court has held, are subject to the international law of war. Offences against the Law of Nations. These decisions are not about martial law. They demarcate the line between military and civilian jurisdiction, rather than allowing the military to exercise jurisdiction in an area ordinarily reserved for civilian courts.
No existing federal statute explicitly authorizes the president to declare martial law. Virgin Islands to declare martial law under certain circumstances. Neither statute grants any power to the president. However, there are a number of statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically.
The most important of these is the Insurrection Act. Rather than a single package of legislation, the Insurrection Act consists of a series of statutes that were enacted between and , with a few amendments in the 20th century.
The act and parts of the act contained sunset provisions, and are no longer in force, but their text and legislative history remain instructive. The first two, Sections and , are relatively straightforward and mirror the language of the Calling Forth Clause.
Nothing in the plain language of Sections and indicates that they authorize martial law. Rather, it contemplates that the military may assist overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group. These include white papers, government data, original reporting, and interviews with industry experts. We also reference original research from other reputable publishers where appropriate.
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Partner Links. Related Articles. Laws That Protect Workers. Investopedia is part of the Dotdash publishing family. Historically, state governors are most likely to declare martial law in cities and counties in their jurisdictions. The federal government's authority to invoke martial law is less settled and has been used sparingly.
The United States Constitution doesn't explicitly mention martial law. No federal statute or U. Supreme Court decision clearly states who has the authority to declare martial law and under what circumstances.
Constitutional law scholars who study executive power and the origin of martial law note that the President is the commander in chief of the military. But Congress regulates when and where the military can be used for activities, like civilian law enforcement, typically associated with martial law. While lacking authority to unilaterally declare martial law, under the Insurrection Act the President has limited authority to deploy troops to suppress a domestic rebellion and enforce federal law.
But federal troops deployed pursuant to the Insurrection Act are a supplement to civilian government, not a replacement. President John F. Kennedy invoked the Insurrection Act in and to send federal troops to Mississippi and Alabama to enforce civil rights laws. The U. Supreme Court has explicitly held that individual states have the power to declare martial law within their borders.
Typically, a governor's power to declare martial law originates in the state's constitution. Martial law does have limits. The Posse Comitatus Act, passed on June 18, , 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.
Northern Command. 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.
Though purely a hypothetical, Banks notes that the way it would happen would be through the Insurrection Act. 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.
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