Major Kirk L. Davies
Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49
Air Force Law Review
67-218, 85-90 (2000)
Ideally, the President will never have to declare martial law in response to a national crisis.(1)
The
best scenario envisions the nation responding to such a crisis with civilian agencies in the forefront
and the Department of Defense in its traditional support role. However, should civilian agencies
become overwhelmed in an environment of chaos and panic, one of the President's obvious
options for restoring order would be to declare martial law. Such a response is an extreme option,
well beyond what is contemplated under statutes relating to disaster response actions or limited
military support to civilian law enforcement authorities.
A. Martial Law Defined
In our country, federal authorities have declared martial law on only a few occasions.(2)
Since our
country's legal system is based on the concepts of stare decisis and precedent, there is no body of
case law to which explains a precise legal definition of the term "martial law." Some scholars
suggest that martial law is not really law at all. Blackstone, for example, has described martial law
as:
[T]emporary excrescences bred out of the distemper of the state, and not any part of the
permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled
principles, but is entirely arbitrary in its decisions, is ... in truth and reality no law, but something
indulged rather than allowed as a law.(3)
Some scholars prefer to use the term "martial rule," avoiding the use of the term "law" in this
context.(4)
In fact, one of the most noted authors on the subject of martial law, Charles
Fairman,
insists on referring to it as martial rule, thus eliminating the possibility of inferring that the
condition is lawful.(5)
He states:
Martial law [in the sense we are using it] is more accurately described as martial rule, which
obtain in a domestic community when the military authority carries on the government, or at least
some of its functions. Martial rule may exist de facto; the term is noncommittal as to its legality.(6)
Martial law has been defined in various manners. Essentially, it is "the rule which is established
when civil authority in the community is made subordinate to military, either in repelling invasions
or when the ordinary administration of the laws fail to secure the proper objects of the
government."(7)
The Supreme Court has defined martial law as "the law of military necessity in the
actual presence of war. It is administered by the general of the army, and is in fact his will. Of
necessity it is arbitrary, but it must be obeyed."(8)
Scholars consistently agree that necessity is a mandatory precondition to imposing the state of
martial law.
Martial law is the public law of necessity. Necessity calls it forth, necessity justifies its exercise,
and necessity measures the extent and degree to which it may be employed. That necessity is no
formal, artificial, legalistic concept but an actual and factual one: it is the necessity of taking
action to safeguard the state against insurrection, riot, disorder, or public calamity. What
constitutes necessity is a question of fact in each case.(9)
The Code of Federal Regulations mirrors this definition of martial law. It states: "Martial law
depends for its justification upon public necessity. Necessity gives rise to its creation; necessity
justifies its exercise; and necessity limits its duration."(10)
Compared to the civil disorder statutes, which give the president limited authority in narrowly
defined circumstances, martial law grants the executive broad emergency powers. The civil
response statutes impose restrictions that the President must meet before he can commit federal
troops to a given crisis. (11)
In contrast, practically the only limitation on a commander's actions
under martial law is the continued state of necessity that prompted its imposition in the first
place.(12)
The declaration of martial law allows the military broad authority to "do all acts which are
reasonably necessary for the purpose of restoring and maintaining public order."(13)
These acts
include restricting individuals' movement, imposing punishment through military trials, and
suspending other fundamental rights.(14)
B. Is Martial Law lawful?
It is logical that a President should be able to impose martial law to preserve the nation, even if
not explicitly authorized in the Constitution. President Lincoln echoed this sentiment when he
asked: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest
that one be violated?"(15)
Indeed, the President states in his oath of office: I do solemnly swear (or
affirm) that I will faithfully execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the United States.(16)
In
addition, the Constitution requires the President to ensure that the laws are faithfully executed.(17)
Accordingly, the President should have the inherent authority, in fact the responsibility, to
preserve the nation, even if it means taking extreme actions not specified in the Constitution.
Some scholars suggest that the executive may be justified in acting outside the Constitution's
explicit authority, when required by the nation's best interests.(18)
This type of power (as opposed
to authority) was apparently accepted by classical thinkers in the 18th Century. A review of the
prevailing intellectual views on this topic during that time provides insight into why the
Constitution does not more explicitly define the President's emergency powers:
Classical liberal theory thus divides executive action into two spheres: normal constitutional
conduct, inhabited by law, universal rules and reasoned discourse; and a realm where universal
rules are inadequate to meet the particular emergency situation and where law much be replaced
by discretion and politics ... liberalism seeks to separate emergency rule from the normal
constitutional order, thereby preserving the Constitution in its pristine form while providing the
executive with the power, but not legal authority, to act in an emergency.(19)
Under this theory, the executive can impose martial law without violating the Constitution, even
though he is acting outside its express language. President Abraham Lincoln embraced this theory
when he stated:
[M]y oath to preserve the Constitution to the best of my ability, imposed upon me the duty of
preserving, by every indispensable means, that government--that nation--of which the Constitution
was the organic law. Was it possible to lose the nation, and yet preserve the Constitution? By
general law life and limb must be protected; yet often a limb must be amputated to save a life; but
a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional, might
become lawful, by becoming indispensable to the preservation of the constitution, through the
preservation of the nation. (20)
This commonsensical point of view rings true, particularly when considering that the president not
only has the duty to preserve the nation, but also that the office has most resources ready and
prepared to take such drastic action. Whether or not the President has inherent powers to
preserve the nation has been the topic of vigorous scholarly debate.(21)
Beyond the intellectual arguments, the real difficulty comes in determining when the President
may wield such frightening power, as in the case of martial law, to deprive citizens of their
constitutional rights. Fairman has stated that,
[o]ur constitutional system contains within itself all that is essential to its own preservation. It is
adequate to all the exigencies which may arise. When force becomes necessary to repress illegal
force and preserve the commonwealth, it may lawfully be exerted, Martial rule depends for its
justification upon this public necessity. It is not a thing absolute in its nature, a matter of all or
nothing. On the contrary, it is measured by the needs of the occasion. What appeared reasonably
necessary under the circumstances will be justified upon the great first principle that the nation has
power to maintain its own integrity. The reason of the law, as the judges often said, is compressed
in the maxim Quod enim necessitas cogit, defendit. (22)
For a military commander responsible for executing the President's orders, these questions are
more than an interesting intellectual debate. The commander in this unusual situation must make
the difficult and risky analysis of whether or not the President is properly operating within his
"power," even though he is technically acting beyond his "legal authority."(23)
A review of Supreme
Court case law provides some useful guidance.
1. . Few would argue that the President has the authority to respond with force to an armed
attack upon the United States. "An early draft of the Constitution vested in Congress the
power to 'make' war rather than the power to 'declare' war. The change from 'make' to
'declare' was intended to authorize the President the power to repel sudden attacks and to
manage, as Commander-in- Chief any war declared by Congress." Commonwealth of
Massachusetts v. Laird, 400 U.S. 886, 893 (1970) (Douglas, J., dissenting)) and see
generally, Note, The Congress, the President, and the Power to Commit Forces to
Combat, 81 HARV. L. REV. 1771 (1968)). See also Jane E. Stromseth, Collective Force
and Constitutional Responsibility, 50 U. MIAMI L. REV. 145, 158 (1995) ("To be sure,
the President as Commander in Chief clearly has the authority under the Constitution (and
under Article 51 of the U.N. Charter) to repel sudden attacks against the United States
and its forces."). For purposes of this article, the author assumes the President's authority
to respond to civil disorder or crisis, either as a response to external attack (by a terrorist
or nation state) or an internal attack (with a biological or chemical agent) is not an
offshoot of this "repel" authority.
2. . Martial law has been imposed on the state level on numerous occasions, generally in the
context of "labor strikes or other civil turmoil." Harry N. Scheiber and Jane L.
Scheiber,
Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawai'i, 19 U. HAW.
L. REV. 480 (1997) (citing Charles Fairman, The Law of Martial Rule and the National
Emergency, 55 HARV. L. REV. 1253 (1942)).
3. . 2 W. BLACKSTONE, COMMENTARIES 413, quoted in DYCUS ET AL.,
NATIONAL SECURITY LAW 398 (1990) (emphasis added).
4. . For some people, the distinction between "martial rule" and "martial law" is a distinction
without a different. For others, the terminology is important because of the underlying
message sent by each term.
People imagine, when they hear the expression martial law, that there is a system of law known
by that name, which can upon occasion be substituted for the ordinary system; and there is a
prevalent notion that under certain circumstances a military commander may, by issuing a
proclamation, displace one system, the civil law, and substitute another, the martial ... Let us call
the thing by its right name; it is not martial law, but martial rule.
CHARLES FAIRMAN, THE LAW OF MARTIAL RULE 28 (2 ed. 1943) (quoting David
Dudley Field in his argument before the Supreme Court in Ex parte Milligan, 71 U.S. (4 Wall.) 2,
35 (1866)).
5. . For purposes of this article, the author prefers to use the more common term, "martial
law," in order to avoid confusion. However, he agrees that "martial rule" is a more
desirable term for describing the condition of military imposed rule.
6. . FAIRMAN, supra note 95, at 30. See also ROBERT S. RANKIN, WHEN CIVIL LAW
FAILS 173-76 (1939) (surveying scholarly opinion positing that martial law is
extraconstitutional in nature).
7. . MAJOR WILLIAM E. BIRKHIMER, MILITARY GOVERNMENT AND MARTIAL
LAW ¶ 357, at 371 (3 superrd ed. Revised, Franklin Hudson Publishing Co., 1914).
8. . United States v. Diekelman, 92 U.S. 520, 526 (1876).
9. . FREDERICK BERNAYS WIENER, A PRACTICAL MANUAL OF MARTIAL LAW
16 (1940). See also FAIRMAN, supra note 95, at 22; RANKIN, supra note 97, at 191.
10. . 32 C.F.R. § 501.4 (1999).
11. . See discussion infra Part 1.E.
12. . An obvious exception to this general rule is that federal troops may not take extreme
actions, like torture, murder and rape, which would violate Americans' human rights, even
in the name of national emergency. See discussion infra n.191.
13. . 53 AM. JUR. 2ND Military and Civil Defense § 441 (1996). But see WIENER, supra
note 100, at 15 ("[T]he purpose of martial law is not to replace the civil administration of
law but to support it by brushing aside the disorders which obstruct its normal
operation.").
14. . This article does not explore the full extent of a commander's authority while operating
under a proclamation of martial law. But for a thorough discussion of what a commander
may do under such circumstance, see generally FAIRMAN, supra, note 95, RANKIN,
supra note 97, BIRKHIMER, supra note 98, and WIENER, supra note 100.
15. . President Abraham Lincoln, Message to a special session of Congress (July 4, 1861),
quoted in WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE, CIVIL
LIBERTIES IN WARTIME, at title page (1998).
16. . U.S. Const. art. II, § 1.
17. . U.S. Const. art. II, § 3.
18. . William C. Banks and Alejandro D. Carrio, Presidential Systems in Stress: Emergency
Powers in Argentina and the United States, 15 MICH. J. INT'L L. 1 (1993). The authors
note that,
liberal constitutional thought in the 18 superth century separated lawful from lawless
government by simply positing a boundary line: "separate spheres of emergency versus
non-emergency governance." ... Through the doctrine of prerogative, [John] Locke's version of
executive emergency powers was their extra-legal character. The prerogative was to act
"according to discretion, for the publick [sic] good, without the prescription of the law, and
sometimes even against it."
Id. at 10.
19. . Jules Lobel, Emergency Power and the Decline of Liberalism, 98 YALE
L.J. 1385, 1390
(1989).
20. . Letter from Abraham Lincoln to A. Hodges (April 4, 1864) reprinted in VII
COLLECTED WORKS 281 (R. Basler ed. 1953-1955) quoted in DYCUS, supra note 94,
at 83.
21. . Regardless of the lack of explicit constitutional authority, society appears to recognize
the fact that the President, as chief executive, possesses some authority to preserve the
nation during a time of crisis. Interestingly, among all of the Supreme Court cases (see
discussion infra Part III) that have addressed martial law, none have stated that it is
completely unlawful for the President to declare it. Instead, they focus on the
preconditions necessary for its imposition. Alexander Hamilton stated:
[I]t is impossible to foresee or define the extent and variety of national exigencies, and the
corresponding extent and variety of the means which may be necessary to satisfy them. The
circumstances that endanger the safety of nations are infinite, and for this reason no constitutional
shackles can wisely be imposed on the power to which the care of it is committed.
THE FEDERALIST No. 23, at 153 (Alexander Hamilton) (Clinton Rossiter ed. 1961) (quoted in
Oren Gross, "Once More Unto the Breach": The Systemic Failure of Applying the European
Convention on Human Rights to Entrenched Emergencies, 23 YALE J. INT'L L. 437, 439
(1998). But cf. Henry Paul Monaghan, The Protective Power of the Presidency, 93
COLUM. L.
REV. 1 (1993).
22. . FAIRMAN, supra note 95, at 47. (Translation: That which, in fact, you know you need,
defend.).
23. . Lobel, supra note 110, at 1390.
