Last week I watched a documentary about the different kinds of laws we have here in the United States. One topic that was covered very briefly was martial law. I realized that this was a type of law that I didn’t know much about, leading me to ask: what are the types of martial law?
Martial law occurs when civilian laws are temporarily suspended, and the military takes control. There are three different kinds of martial law in the United States:
- The military assists civilian authorities with non-law enforcement functions.
- The military assists civilian authorities with law enforcement functions.
- The military replaces the civilian government.
The Three Types of Martial Law
Martial law can be confusing to understand as there is no precise definition. It is not mentioned in the U.S. Constitution and can be enacted differently depending on the situation. There are also no acts of Congress that definite martial law.
Although the U.S. Supreme Court has addressed the issue of martial law on several occasions, their review process and final decisions have often been vague and confusing. Martial law always involves the military and uses the armed forces in different ways to act in emergencies.
Despite its frequent appearance in movies and television shows, martial law is actually extremely rare within the United States. Enacting any of the types of martial law described below requires the authority of either a state’s governor or the President. Any use of martial law draws extreme scrutiny from legal scholars and has the potential to be highly damaging to a person’s political career.
Military Assists With Non-law Enforcement Functions
In this first type of martial law, the military will assist civilian authorities with non-law enforcement functions. This type most often occurs after serious accidents or natural disasters when the sheer scope of the incident is too large for the civilian government to cope effectively.
A recent example of this type of martial law is the military’s involvement in the post-Hurricane Katrine rescue efforts in 2005. During this unprecedented natural disaster that resulted in the flooding of New Orleans, the civilian authorities of both New Orleans and Louisiana were unable to successfully assist all of the impacted citizens on their own. The U.S. military activated their helicopter search-and-rescue units and assisted with the efforts to rescue people who were trapped behind the high floodwaters.
With this type of martial law, the military units involved were there to work alongside the civilian governments. They provided additional personnel and resources (like the rescue helicopters) to help save lives throughout the duration of the emergency. At no point did the military take control, and their assistance ended when the immediate emergency was over.
Military Assists With Law Enforcement Functions
In the second type of martial law, the military will assist civilian authorities with law enforcement functions. This type often occurs when there is serious discord in a local community that has led to violence and destruction. Suppose the civilian authorities are unable to regain control of the situation. In that case, the military can step forward to assist with the law enforcement until such a time that the civilian government can handle it on its own.
An example of this type of martial law is during the 1992 Los Angeles riots. These riots occurred in April and May of 1992 in Los Angeles, California, after a jury acquitted four police officers of using excessive force during the arrest and beating of Rodney King.
The incident was captured on video and had been widely viewed by the civilian population. After the jury gave the verdict, incidents of rioting, looting, arson, and assault broke out across the city. Thousands of people were involved, and the civilian governments of Los Angeles were unable to resolve the situation.
The California National Guard was brought in, along with the U.S. military and federal law enforcement agencies. In total, over 5,000 federal troops were utilized to end the rioting and associated crimes.
With this type of martial law, the military personnel was again only utilized during the specific duration of the emergency. After they managed to stop the rioting, they left Los Angeles and returned to their previously assigned duties. At no point did the military take control of the city, and their role was only to assist the civilian government.
Military Replaces Civilian Government
With the third type of martial law, the military replaces the civilian government entirely. This type is typically the kind of martial law that people think about when they reference martial law. The military is entirely in charge of creating and enforcing laws, including the ability to bring non-military civilians before a military tribunal.
An example of this type of martial law is in Hawaii during World War II. Military law was effected in Hawaii immediately after the Japanese attacked Pearl Harbor on December 7, 1941. The military completely took over all of the authority and responsibilities of the civilian government, replacing it with military leadership.
During this period of martial law, the military had complete control over all law enforcement, from parking tickets to criminal justice. The court system was completely shut down and replaced with military tribunals that ruled over all issues. The elected government was no longer in charge, and the military took over all governmental functions.
This type of martial law is used rarely in the United States, and in fact, its use in Hawaii during World War II marks its most recent usage. It is reserved for the most complex and dangerous situations in which the civilian government cannot maintain control or when external or internal forces cause extenuating circumstances.
How Is Martial Law Declared?
Martial law can be declared at either the national or state level. At the state level, it’s typically declared by the governor and the President of the United States at the federal level.
There are also some scenarios in which Congress might be able to declare martial law. Their powers around martial law are limited based on several Supreme court decisions that took place between the American Civil War and World War II.
Congress’s previous acts also serve as a deterrent to declaring martial law, including the 1878 Posse Comitatus Act, which prohibits military involvement in domestic law enforcement without congressional approval. This would primarily impact the second type of martial law described above.
What Limits Are Placed on Martial Law?
The President is most likely to declare martial law under the Insurrection Act of 1807. This act empowers the current U.S. President to deploy national guard troops and separate military units under specific circumstances, such as civil disorder, insurrection, or rebellion. The Insurrection Act is used infrequently and was last utilized by President George H. W. Bush during the 1992 Los Angelos riots.
The 1978 Posse Comitatus Act also limits martial law. This act limits the ability of the military to enforce domestic policies within the United States. This act applies to the military at the federal level and does not impact the National Guard units from performing duties under martial law within their specific states. This act is revoked if the Insurrection Act is activated.
Examples of Martial Law in the United States
Martial law has only been declared 68 times throughout U.S. history. Only two of these uses were for war or invasion. These were in 1814 before the Battle of Orleans and in 1941 after the Japanese attacked Pearl Harbor. On both occasions, the third type of martial law was used, and the military took complete control of the domestic government.
Martial law has been declared seven times during domestic war or insurrection situations. The most recent application for these circumstances was during the Jaybird-Woodpecker War in 1889, when two Democratic party factions fought for control of Fort Bend County in Texas.
Martial law has been declared for riots or civil unrest on eleven separate occasions. The most recent usage was during the Cambridge Race Riots in Maryland in 1963. There was talk of martial law (and more specifically, the Insurrection Act) being used in Summer 2020 during the riots after the George Floyd murder, but it was never actually enacted.
Martial law’s most prolific use has been for labor disputes. These have typically been preempted by a labor strike when the workers and their companies could not reach a consensus on issues around pay or workplace safety. The last time this occurred was in 1959 during the meat-packing strike in Albert Lea, Minnesota.
Martial law has been used during natural disasters on four occasions. These situations all involved the first type of martial law, where the military provided non-law enforcement support. This type of martial law has also been enacted on the state level, such as with the Hurricane Katrina rescue efforts in 2005.
Aside from these “normal” uses of martial law, it has also been used frequently when protests and disruptions around government transportation and infrastructure projects have occurred. Most of these cases involved efforts by civilians to prevent the building or extension of roads, railroads, or dams, and the local governments affected martial law at the state level.
