Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Presidential Power and Martial Law


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

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.


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