Who Can Declare Martial Law

The president's power to declare martial law is far more limited than many assume, with Congress, federal courts, and key laws acting as real constitutional guardrails. On a national level, both the US President and the US Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state.

[1] The Constitution does not define martial law, and it does not specify who can declare it. However, several presidents and many state governors have imposed or approved declarations of martial law throughout American history.

Congress may be the only governmental branch that can legally declare martial law, and some scholars argue that the president needs congressional approval to impose martial law in a civilian area. By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v.

Borden 3. Martial law can legally be declared only when civilian government and courts have completely collapsed due to invasion, rebellion, or an overwhelming catastrophe, and military authority is the sole means left to maintain order. There have been several instances where a president has declared martial law in the U.S.

In addition, almost all state governors have the power to declare martial law for their states, often in response to natural disasters or some other calamity. Generals may also declare martial law during wartime. Some scholars argue that the President has the executive power to declare martial law, while others believe congressional authorization is required for the President to impose martial law in civilian areas.

The distinction must be made as clear as that between martial law and military justice: deployment of troops does not necessarily mean that the civil courts cannot function, and that is one of the keys, as the Supreme Court noted, to martial law. Constitutional Topic: Military Justice Constitutional Topic: Rewriting the Constitution State officials may also declare martial law, according to the Brennan Center for Justice, however, their actions under the declaration must abide by the U.S.

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