Major Kirk L. Davies
Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49
Air Force Law Review 67-218, 109-112 (2000)
Unfortunately neither the author nor this article can resolve all the legal
questions that would swirl around a declaration of martial law. But,
integrating the cases already discussed, along with the other principles
mentioned above, a type of template becomes apparent that could be useful in
determining whether the President has the authority to move the military into
such as expanded role during an emergency.
This article also presumes that the President enjoys inherent authority to
declare martial law, outside of the powers granted him by the Constitution.
But just as emergencies do not "create power"(1) and "unenumerated powers do not
mean undefined powers,"(2)
the President's power to impose martial law must not
be limitless. Certainly the ability to exercise such power must be subject to
certain limitations. Those limitations are derived from the Congress, balanced
upon conditions of necessity, and tempered by other constitutional
The best method for analyzing the legality of a proclamation of martial is
to integrate the three-tier standard set forth in Youngstown with some of the
principles articulated in the other cases discussed above. Prior to invoking
the Youngstown three-tier analysis, however, a precondition of "necessity" is
indispensable to any declaration of martial law. Meeting this requirement
increases the likelihood a court will favorably view the President's exercise
of discretion under trying circumstances. Moreover, even if the President is
operating under the first-tier,with implied or express congressional approval,
without meeting this precondition of necessity, his actions will likely fail
The more dire the circumstances (hence, the greater the necessity), the more
direct action the President can take. For example, in Milligan, the Court
based part of its rationale upon the fact that the courts were not closed.
Arguably, the Court believed the military was going beyond merely controlling
the civilian population, and inserting itself into the judicial realm--an area
where there existed no need for the military to operate. So, the standard of
necessity was not met in that case, at least to the extent the military wished
as it attempted to try civilians before military commission. In contrast, in
the Japanese cases, the Court upheld the President's emergency actions because
of his ability to articulate why wartime conditions justified such extreme
actions. The conclusion to be drawn from all of these cases is that the
principle of necessity is not limited solely to the declaration of martial
law, but must also be matched against the type of action the President takes
under the umbrella of his newly declared authority.
Once necessity exists, under the first tier of the Youngstown(3)
congressional action (or inaction) becomes the most critical part of the
analysis. Obviously, Congress has never acted to grant the President explicit
authority to impose martial law. But there is ample evidence that Congress has
granted both express and implied authority to the military to act in certain
law enforcement roles. Contrary to years of tradition, the Posse Comitatus Act
now is less like a roadblock than a speed bump between the Armed Forces and
ever-increasing law enforcement roles.(4)
New legislation and initiatives geared
to face the emerging threats have charged the military with a central role in
the planning, training and execution phases of U.S. crisis readiness plans.
Taken together, these statutes and regulations create a strong legal basis for
the President to argue that Congress, upon conditions of necessity, has
implicitly authorized a proclamation of martial law.
The second tier under Youngstown(5)
perhaps presents the most difficult legal
analysis. Here, looking to congressional intent would be fruitless so the
President must act upon his "own independent powers."(6)
However, when operating
within this "zone of twilight"(7)
where distribution of authority is
the President may be invited to exercise "independent
It is here that the President's inherent
authority is arguably at its fullest, and it is here that the President can be
guided by certain factors. First, the actual events, or elements of necessity,
should be key in determining the President's authority,(10)
and second, the
extent to which the President is exercising his power must be considered.(11)
Finally, in the second tier, n the President can take some reassurance not
only in knowing that he is not acting contrary to congressional intent, but
also from the fact that no Supreme Court opinion specifically denounces the
constitutionally of martial law.
If the President acts directly contrary to congressional will, he is
squarely within the third tier of Justice Jackson's template. Even accepting
that the President possesses inherent, extra-constitutional authority
the nation, that power is not unfettered. Here, the President
is taking the greatest risk, both politically and legally. Even though the
Supreme Court is generally disinclined to involve itself in these types of
matters, acting contrary to the stated will of Congress appears to be exactly
the kind of "case" or "controversy" that falls directly within the Supreme
Court's authority to adjudge.(13)
Finally, one must examine and try to determine exactly where this leaves the
military commander. Martial law's "rubber hits the road" when military
authorities impose the President's orders upon individual citizens. Under
these circumstances, the commander's authority is derived from the President's
authority. If the President is justified in taking action, that justification
will flow down to support the military's actions taken pursuant to the
Any military commander would face numerous dilemmas under these
circumstances. Besides facing a hostile population, the commander must weigh
duties to obey orders against obligations to uphold the Constitution. Even if
the commander believes the order is lawful, he must still remain vigilant not
to violate the most basic human rights of the very citizens he is trying to
protect. Unfortunately, the lack of training and preparation for such an
eventuality probably leaves most commanders ill-prepared to handle such a
In 1998, Americans were exposed to the specter of martial law in the form of
a hit movie, THE SIEGE.(15)
The movie vividly depicted the aftermath of a
terrorist attack on New York City where the government declared martial law
and rounded up thousands of Arab-Americans and put them in internment camps.
Unfortunately, some time in the future, life may imitate art and America's
experience with martial law may extend outside the movie theater into reality.
It seems obvious that a number of anti-American groups exist both within and
without our borders that would not hesitate to employ terrorism and other
tactics that could result in upheaval and, perhaps, anarchy within our
The circumstances that would prompt a declaration of martial law are so
horrendous that they are almost beyond contemplation. But that dreadful
eventuality should not translate into a lack of preparation, for if the nation
is prepared, it is less likely to fear even the most awful possibilities.
Those who worry about the profound legal, moral and social implications of
declaring martial law must seriously contemplate Thomas Jefferson's insightful
A strict observance of the written laws is doubtless one of the high
duties of a good citizen, but it is not the highest. The laws of necessity, of
self-preservation, of saving our country when in danger, are of higher
obligation. To lose our country by a scrupulous adherence to written law,
would be to lose the law itself, with life, liberty, property and all those
who are enjoying them with us; thus absurdly sacrificing the end to the means
... The officer who is called to act on this superior ground, does indeed risk
himself on the justice of the controlling powers of the Constitution, and his
station makes it his duty to incur that risk .... The line of discrimination
between cases may be difficult; but the good officer is bound to draw it at
his own peril, and throw himself on the justice of his country and the
rectitude of his motives.(18)
[FNa1]. Major Davies is the Chief of Operations Law in the Office of the Staff
Judge Advocate, 16 superth Air Force, Aviano AB, Italy.
1. . Youngstown, 343 U.S. at 629.
2. . Id. at 610 (Frankfurter, J., concurring).
3. . Id. at 635 (Jackson, J., concurring).
4. . See discussion supra Part III.A.
5. . Id. at 637 (Jackson, J., concurring).
6. . Id.
7. . Id.
8. . Id.
9. . Id.
10. . Id. ("In this area, any actual test of power is likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law.").
11. . As Justice Frankfurter implied, the President's authority may expand if exercised only for a "short,
explicitly temporary period, to be terminated automatically unless Congressional approval were given. Id.
at 597 (Frankfurter, J., concurring).
12. . See discussion supra note 111.
13. . U.S. Const. art. III, § 2, cl. 1.
14. . It has been the author's experience that military attorneys receive little, if any, training on the subject of
martial law. In addition, the author has not participated in any military training exercises that focused on
dealing with civilians in the context of martial law. Even if such emergency plans exist, they are
infrequently used in the context of military exercises.
15. . THE SIEGE (Twentieth Century Fox 1998).
16. . As expected, the movie was extremely controversial. Most of the controversy focused on the improper
stereotyping of Arab-Americans, but the issue of whether our country could ever face martial law also
received a fair amount of attention, as well. See Cindy Pearlman, Terrorism Message to Teach Tolerance;
Director Zwick Has Moral Lesson, THE CHICAGO SUN-TIMES, Nov. 1, 1998, at SHO Section, p.3.
17. . One extremist group, led by Japanese cult leader Shoko
Asahara, has already used chemical weapons
against civilian targets, killing eleven and injuring 3,796 in a March 1995 Tokyo subway attack. See
http:// www.nttls.co.jp/fpc/e/shiryo/jb/j8.html (discussing poisonous sarin gas attack and the events
surrounding the trial of the cult members) (copy on file with THE AIR FORCE LAW REVIEW). Others
seriously contemplate the possibility. Consider the following exchange between a member of an American
white supremacist group and a television interviewer:
LARRY WAYNE HARRIS: My view of the future is that we are facing now a biological apocalypse. It is
coming. The Bible says that it is coming.
NARRATOR: Larry Wayne Harris, a member of the white supremacist group Aryan Nation, has been in
constant trouble with the law for his attempts to obtain plague bacteria and anthrax through the mail. Harris has
written a manual for do-it-yourself biological warfare, and he claims it is easy to acquire these deadly agents.
INTERVIEWER: Could you personally use biological organisms offensively, if you have to?
LARRY WAYNE HARRIS: Most definitely. I -- I hope I never have -- we never have to, but most definitely.
INTERVIEWER: Do you believe, looking into the future, that you may have to?
LARRY WAYNE HARRIS: I hope and pray that I never have to.
INTERVIEWER: That's not the question, Mr. Harris.
LARRY WAYNE HARRIS: Yes.
Frontline Internet Site, supra note 2.
18. . Lobel, supra note 110, at 1393 (citing Letter from Jefferson to Colvin, 20 Sept. 1810, reprinted in 11
THE WORKS OF THOMAS JEFFERSON 146, 148- 49, (P. Ford ed. 1905)).