What Is Martial Law and How Could Trump Declare It
By: Nicolas Carteron
Tags: Election 2020, Trump, Politics, Law, Society

To begin with, martial law isn’t described in the Constitution. Declaring it is a prerogative, on a Federal level, of the President and Congress, but there isn’t much more to go with. Its specifics aren’t outlined anywhere. Quoting a Syracuse Law professor, “If someone has declared martial law, they’re essentially saying that they are the law.”

Martial law is intended to replace failed civilian institutions. In dire moments, when the very fabric of civil society is collapsing, when civilian jurisdictions cannot administer justice, martial law can be declared to provide the country with a structure and ensure its continuity.

Trump keeps on suing, and he keeps on losing. Why?

Martial law has been declared at least 68 times in American history. Whether to enforce Federal laws against local resistance (in the South after the Civil Rights Act), to restore peace after riots, or to ensure the safety of cities having been ravaged by natural disasters, the applications of martial law are broad but have always been geographically limited. Never has a state of Federal martial law been declared.

The main consequence of martial law is the suspension of civil liberties. Under such a regime, “the right to be free from unreasonable searches and seizures, freedom of associations, and freedom of movement” can all be suspended. Most importantly, the writ of habeas corpus can be suspended too. This means that there would be no more legal recourse against wrongful imprisonment. Whoever declares martial law is free to arrest and detain anybody for any reason.

Martial law has some limitations. The Posse Comitatus Act prevents federal troops from enforcing domestic law. A major exception to note is that National Guard units are exempt from the Posse Comitatus Act because they take their orders from the state governors.

The Insurrection Act, however, provides for a loophole that allows the use of troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings.”

The Insurrection Act isn’t martial law. While they appear similar, they are two very different mechanisms. The Insurrection Act is designed to allow military enforcement of civilian laws and jurisdiction, not to replace them entirely.

Martial law operates in a very grey area. To quote the Syracuse Law professor again, “One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law. They can do it. It’s not sanctioned by law.”

A few people are key to prevent martial law. Chief among them is the Defense Secretary. Until recently, this was Mark Esper, who was quoted in a memo to the troops as saying:

As citizens, we exercise our right to vote and participate in government. However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.

Mark Esper was fired on November 11 by Donald Trump. Another key figure is the Chairman of the JCS, Mark Milley, who stated in an NPR interview: