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Ferdinand Marcos as a Leader: Impact of Martial Law on Philippines

Categories: Leader Philippine Government Philippines

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Published: Aug 31, 2023

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Introduction, ferdinand marcos: golden era illusion, dark legacy of ferdinand marcos as a leader.

Amnesty International. (1982). 'The Philippines: Torture in the Marcos Era.' Retrieved from https://www.amnesty.org/en/library/info/ASA35/001/1982/en.
World Bank Data. (1980s). Retrieved from World Bank database.
National Historical Commission of the Philippines. (n.d.). 'The Martial Law Years.' Retrieved from https://www.nhcp.gov.ph/resources/online-resources/martial-law-years/.

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[OPINION] Never again, never forget: The violent memory of Martial Law

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[OPINION] Never again, never forget: The violent memory of Martial Law

September marks the anniversary of a turbulent, violent, and painful memory in Philippine history – Ferdinand E. Marcos’ Martial Law. This year, in particular, denotes the 50 th anniversary of its declaration.

“Never again, never forget,” we chant to remember, to commemorate, to fight.

But for those of us who weren’t alive during the time, pro-Marcos Filipinos always throw the argument, “ ’Di pa naman kayo pinapanganak nun, paano ‘nyo alam? ” (You weren’t born then so how do you know?)

And as retaliated by many, the younger generation’s memory of Martial Law comes from different sources, like their family’s personal stories, lessons taught in history class, artworks based on or made during the time period, news clippings from media outlets. The memory of something does not need to be experienced firsthand for people to express empathy and solidarity.

And so, based on various sources, here is why we must not forget.

Marcos started his political career in 1949 as a congressman in Ilocos Norte. He became a senator in 1959 and finally, the president in 1965. When he ran for president, he campaigned with his wife, the “endearing” Imelda Marcos. Imelda, as a beauty queen who sang for the crowd, was a vote-getter . They campaigned together which earned them patronage from the people. It’s not difficult to see why the Filipinos loved them – aside from Marcos being from the north and Imelda being from the Visayas – they were seen as a couple, a love team people could root for. To be a little blasphemous about it, they can be juxtaposed with KathNiel, AlDub, LizQuen or JaDine.

However, Ferdie and Imelda’s identities went beyond this swooning couple, and beyond the praise that people gave them. Firstly, Marcos’ character was questionable. He presented himself as the country’s “most decorated war hero” but this was proven to be untrue . To have most of his appeal come from a lie is already questionable. In addition to this, during the 1986 snap elections, vote tabulators from the Commission on Elections or Comelec walked out as they noticed superiors manipulating the vote count to put Marcos in the lead. This packs on the deceit that Marcos upheld as a leader. What do we expect from a president who repressed the media so that his failures and atrocities remain unknown anyway?

Corruption and human rights during Martial Law

Aside from mere lies, Primitivo Mijares wrote in his book, The Conjugal Dictatorship of Ferdinand and Imelda Marcos , “The corruption of the martial regime is not confined to the insatiable acquisition of the country’s material resources, but extends to the exercise of power itself. Having proclaimed martial law, he proceeded to bribe, coerce and/or intimidate the Constitutional Convention members into drafting a new charter dictated by him.” Aside from corruption of funds and resources, Marcos’ propagandist-turned-whistleblower Mijares confirmed the late dictator’s greed for power. He didn’t want his term to end which led to the declaration of Martial Law.

However, as terrible as this already sounds, from lies to theft to repression to corruption, the history of Martial Law gets worse as we dig deeper. While corruption ensued, media was repressed, cronies were favored, lies were propagated, shoes were collected, Filipinos’ human rights were also being directly violated.

According to an Amnesty International report that documents the human rights abuses during Martial Law, there are around 3,240 known extrajudicial killings, 34,000 documented tortures, 70,000 imprisonments, and 77 recorded disappearances. It’s important to note that these are just the recognized ones, meaning that the numbers are even higher when we consider the cases that went unrecorded. With these large statistics, we must remind ourselves that Martial Law victims are more than just numbers. These are fellow Filipinos, most of them political rivals, student activists, journalists, religious workers, farmers, peasant organizers; most of them fought the dictator.

The Marcoses’ corrupt desire for power led to all of this. To make it even more concrete, Mijares himself, who used to be Marcos’ most trusted confidante, was one of the victims. After turning against the Marcoses, he disappeared and was never found, while his son, Luis Manuel Mijares, was killed shortly after. They are just two of the thousands of victims who were either killed or who continue to be scarred by their past.

Sources of a collective memory

Many works continue to record this history of human rights abuses during Martial Law, not just through documents but also through art. Desaparesidos , a novel by Lualhati Bautista, chronicles the experience of a desaparecido , who was tortured and eventually incarcerated. It follows the life of a mother who finds it hard to move past the pain brought by Marcos’ Martial Law. Liway , a film by Kip Oebanda, shows a family who spent years in prison together because they fought against the Marcoses. ML, a film by Benedict Mique, depicts the level of brutality of the state force during Martial Law. Indigo Child , a play by Rody Vera, shows the scars that remain even years after a victim is tortured and how this can cause rifts in the family.

These are just a few examples and sources to get started with, which already show that we do not need to have been there to stand against the untruths and injustices. But after hearing how atrocious, violent, and scarring Martial Law is, why must we never forget? Would it not be easier if we did?

There are numerous victims who continue to find it hard to recount their experiences, and this is completely understandable. We should not dictate on individuals who have been abused and violated in unimaginable ways on how to deal with their trauma. However, collectively as a Filipino people, in solidarity with all the victims who choose to continue to speak out or can’t, we must never forget. We must never forget because it is disrespect for those who fought so that we may be free from the clutches of the Marcos dictatorship. To remember is to memorialize those who sacrificed their safety and personal lives so that future generations would not suffer what they did.

It even becomes more imperative that we remember, especially now that disinformation, historical denialism, and the Marcosian myth persist. It becomes more important now that the son of the dictator again sits, sleeps, lives in, and has invaded Malacañang Palace.

We must never forget so that we may never again suffer the same fate. Ironically, they are back at the Palace, which reminds us to fight again, to continue remembering, and to speak the truth.

We find ourselves again at the precipice of history. What do we do now? Never again. Never forget. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government. Bernardine de Belen recently graduated from the Ateneo de Manila University with a Creative Writing degree. She has just joined Manila Observatory as a research assistant.

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Millennials: rendering judgment on martial law, choosing advocacies

By Roberto Verzola

THIS essay on martial law is particularly addressed to the millennials, although it is also for the general audience. It is both a personal and a political account. I will try to separate the personal from the political in this story. I will tackle both, but separately.

PERSONAL MATTERS Since I was tortured by the Marcos military, martial law is obviously very personal for me. For years, I held the anger within. I wanted to write a full account for posterity, so I tried to keep every detail in memory. I did not want to forget anything. But the writing repeatedly got sidelined by more immediate demands of work and family. Perhaps as the memories tried to find a way to surface, I had nightmares about the ordeal. I would wake up in a silent scream or out of breath. Sometimes, the nightmares were vivid. At other times, they dissolved from memory as soon as I woke up.

It was like that for nearly 40 years, until the College Editors Guild of the Philippines (CEGP) Alumni Association 1968-1972 asked me to contribute a chapter in their martial law book project.

Despite the tight deadline, I agreed immediately. In a few weeks, my draft was done, and the book project’s staff took over. My personal account of the martial law years, the torture ordeal in particular, was published in 2014. It is now part of the public record. Anyone can read “Lest We Forget”, my particular piece of a giant puzzle, as people try to reconstruct the Marcos martial law years and render their historical judgment.

Having written the details down, I do not have to remember them anymore. I can now leave them behind. I can now allow myself to forget.

WHY FORGET? Forgetting is my first step towards forgiving. (I can almost hear some of my dearest colleagues mumble, “No way!”)

I said this part was personal. I want to forgive. I need to forgive, not for the sake of the Marcoses, but for my own sake. For my own mental — and therefore physical — health. It is unhealthy to keep the anger and hate within for years. It is a cancer in the mind that consumes its victim. The cancer can define one’s entire life.

In fact, I am now ready to say in public that I have personally forgiven Ferdinand Marcos — may he rest in peace — for the ordeal I went through in the hands of his military, acting under his orders. I have personally forgiven my torturers too.

SHIFTING TO THE POSITIVE Many movements today thrive on anger and hate. The typical media image of the activist is an angry young student shouting slogans at the hated police. For years, I myself have been a convenor or leading member of organizations that defined themselves in terms of what they were against, instead of what they were for.

In 2003, after the 30-day hunger strike I led against GMO corn, I finally decided to focus henceforth on positive advocacies, issues like renewable energy, organic farming, sustainable housing, macrobiotics, natural healing, low-power radio stations, free software, and so on. My daily activity today revolves around renewable energy and sustainable technologies like the system of rice intensification (SRI). There is little anger or hate in these advocacies, mostly joy and love.

That was the personal. Let us now go to the political.

POLITICAL PERSPECTIVES My personal perspective is not debatable. But my political perspective is. I welcome a debate on the following political perspective on martial law.

The 1972 martial law declaration was the product of the unique conditions of those times as well as the work of two major contending political forces.

Many factors obviously contributed to the declaration of martial law, such as international trends, economic crisis, and personal motivations. I will add an important one — we had national elections for three consecutive years. This is a truly unique incendiary condition which will not be repeated for a long time.

THREE CONSECUTIVE NATIONAL ELECTIONS In 1969, we held a presidential election. This was the election that won Ferdinand Marcos an unprecedented second four-year. The Philippine Constitution did not allow a third term. His first year was marked by lots of protest questioning the legitimacy of his election win and condemning his widespread use of “guns, goons, and gold”.

In 1970, we held another national election, a special once-in-a-lifetime-election for delegates to a Constitutional Convention (Con-con). After that election, the Con-con organized itself and met daily to draft a new constitution. The daily Con-con debates were scrutinized closely by the media and the public. It was becoming clear that Marcos wanted to extend his rule, which was impossible under the old Constitution.

In 1971, we held a third election, the senatorial and local elections. On August 21, the opposition’s senatorial line-up was nearly decimated, when their proclamation rally in Plaza Miranda was bombed. The opposition blamed Marcos; Marcos blamed the communists. In response to the bombing, Marcos authorized warrantless arrest and detention (the legal term is “suspension of the writ of habeas corpus”), targeting mostly protest leaders. The bombing and subsequent arrests, however, turned the anti-Marcos tide into a flood. This was the year I turned into a serious student activist. The flood led to a landslide victory for anti-Marcos candidates. It was a clear indication of the public mood.

These three consecutive election years made sure that that every Filipino of voting age, especially the most politically active ones, got deeply engaged in politics and debate. It kept the political pot simmering, building up the heat towards the boiling point.

THE POLITICAL DANCE OF TWO FORCES THAT BOTH WANTED A DICTATORSHIP That the political pot actually boiled over and culminated in the martial law declaration, however, was the conscious work of two major political forces.

The first was Ferdinand Marcos and his cronies. They were driven by insatiable greed as each took a big personal slice of the Philippine economy. The Marcos family got the biggest slice of all. To prolong their feasting on national wealth and income, Marcos and his cronies wanted to extend their rule indefinitely. To do this, they had to overcome the political opposition, the media, and the growing protest movement. They were apparently ready to impose a dictatorship, if that was what it took to keep the stream of ill-gotten wealth coming.

The other contributory political force was the Communist Party of the Philippines and its armed force, the New People’s Army . The CPP wanted to set up in the Philippines, through armed struggle, its own type of dictatorship, which it explicitly called a dictatorship of workers and peasants. The CPP would later turn this into a dictatorship of the proletariat, following similar models that had triumphed earlier in the Soviet Union, Eastern Europe, China, North Korea, Cuba, Vietnam, Laos and Cambodia. To implement its program to seize political power through armed struggle, the CPP had organized the NPA in 1969. Soon, the NPA was aggressively recruiting, expanding, and killing government spies and other “bad elements” in every region of the country. Where it felt strong enough, the NPA launched deadly ambushes against government soldiers.

While smaller roles were played by other political forces such as the opposition political parties, the churches, and the more loosely-organized social-democrats, it was the escalating violence and armed conflict between Marcos and CPP forces that made martial law inevitable. Martial law would sideline the weaker unarmed forces, but it would strengthen the Marcos and CPP forces. The armed Muslim separatists/autonomists gained strength too.

HOW THE CCP’S ARMED STRUGGLE HELPED BRING ABOUT MARTIAL LAW The key role of the CPP in bringing about martial law is highlighted by the following CPP armed actions:

1. For years, the CPP blamed Marcos for bombing the Plaza Miranda opposition rally. But the truth finally came out, as it invariably does. Bombing victim Senator Jovito Salonga, who almost died from the shrapnels, initially believed that Marcos ordered the bombing. Salonga collected various testimonials over the years and eventually became convinced that it was the CPP that did it. My own conversations in prison with some penitent CPP leaders and subsequent inquiries with other leaders also confirmed it. Had the CPP role remained a secret, the act would have been celebrated by the CPP leaders who ordered it as a stroke of political genius. The bombing decimated the opposition, isolated Marcos, drove him to extremes, and pushed thousands of illegalized urban activists into the underground and the open arms of the New People’s Army. CPP leaders continue to publicly deny its role in the bombing. When people speak of “historical revisionism”, be warned that this is a practice in communist movements too. (Google “Plaza Miranda bombing” for details.)

2. In 1972, the CPP implemented a daring project to secretly bring in by ship thousands of weapons and ammunition into the Philippines for its armed struggle. The weapons supposedly came from North Korea (the North Korean and CPP leaders were literally close comrade-in-arms, apparently) and were to be smuggled through MV Karagatan on the Isabela side of Luzon and MV Doña Andrea on the Ilocos side of Luzon. Unfortunately for the CPP, the military found out just in time, and only a portion of the arms shipments actually made it. While in prison, I spent many months listening to the details of the project from those who planned and implemented it. (Google “MV Karagatan Dona Andrea arms smuggling.”)

3. In the years leading to the 1972 martial law declaration, the NPA had rapidly expanded and established what it called guerrilla zones and guerrilla areas in practically every region in the country. In its most advanced areas, NPA regular forces (full-time soldiers, as opposed to part-time guerrillas) were starting to practise platoon operations for its raids and ambushes. Martial law provided a bonanza of political officers, commanders and fighters for the growing army. The CPP was following the classic Maoist model of a guerrilla war “surrounding the cities from the countryside”. Together with the forthcoming thousands of weapons from North Korea, the CPP was already anticipating the second stage of its armed struggle, the “strategic stalemate”.

Both intent on their own types of dictatorship, the Marcos and CPP forces fed on each other’s violence. Even without the CPP, Marcos was bent on staying in power anyway. Even without Marcos, the CPP was bent on waging armed struggle anyway. Together, they each provided a convenient excuse for the other’s moves. It was a vicious cycle of escalating political violence and military conflict that inexorably led to martial law. The cost in human suffering was terrible, not only among those caught in the crossfire, but also to both sides of the conflict.

THE PRO- AND ANTI-MARCOS DEBATE AMONG MILLENNIALS The debate about the Marcos martial law regime is very much alive today. It is usually most visible every August and September, as the Ninoy Aquino August 21 death anniversary (and Plaza Miranda bombing anniversary too) segues into the September 11 Marcos birthday and the September 21 martial law anniversary. Although I have personally focused on positive advocacies, I continue to belong to the anti- side of this political debate.

I would like to share my analysis of when and how this debate may be resolved among the millennial generation.

WHEN? IN 2022 In 2022, most of those who went to school in the new millennium will be of voting age.

This is the year when President Duterte’s term ends. It will therefore be the year when millennials will be participating en masse in choosing a new leader of the country.

The year 2022 will also be the 50 th anniversary of the Marcos martial law regime. Everyone, anti- and pro-Marcos alike, will be debating martial law with special intensity, given two additional contexts:

The first is Duterte’s Mindanao martial law declaration, which will presumably put many Duterte forces on the pro- side of the debate. Martial law to millennials will be Duterte-style martial law.

The second is the expected candidacy of a Marcos in 2022. Can anybody doubt that a Marcos will be running for election as the country’s new leader? The Marcoses have been preparing for this comeback for decades. They have been active on the Internet and social media for years. The 2016 vice-presidential run was the first step. They clearly have the organization, the money and the momentum.

HOW? JUDGMENT BY AN ELECTORATE OF MILLENNIALS In 2022, expect a battle royale between pro- and anti-Marcos forces, played out through the national elections and among millennials. The issue will be Marcos and martial law; the trophy, the highest elected position in the land.

The result of this political contest, like it or not, will be seen as the historical judgment of the millennial generation of Filipinos on the Marcos martial law regime.

Millennials never lived through the Marcos years nor through the EDSA revolution which overthrew Marcos. Thus, with few exceptions, they can be objective about judging the Marcoses.

Like a judge trying a crime suspect, millennials are neither suspects nor victims of the criminal act. To render a fair and objective decision, a judge must be educated properly about the law, and must study carefully the details of the case.

If the 2022 elections are seen as a public trial of the Marcos martial law regime, then the role of the crime victims is to document our ordeal in enough detail and with enough credibility for the millennials to appreciate the merits of our accusations. I have personally done my part by putting my ordeal on record. The most complete set of accounts by victims is probably held by the Commission on Human Rights. Obviously, the side of the accused will be doing its own documentation too.

It is my hope that, this early, millennials will become aware of the enormity of their historical responsibility and will prepare themselves properly for this role.

The winners of the 2022 elections can be expected to claim that “the people have spoken”. They will see election results as a vindication of their position.

A win by martial law defenders will truly be a bitter pill for martial law victims like me to swallow. An even more bitter pill would be the ensuing revision of history. As political realists say, “History is written by the victors”. Rewriting history is indeed a common affliction among those who are after political power.

BACK TO THE PERSONAL I will end by going back to my personal decision to focus on long-term positive advocacies. Consider a mixed race from the same starting point, on the same road. It can involve sprints, medium- and long-distance runs; a marathon; and the little-known ultra-marathon. The sprinters dash like mad and will know the results in a few seconds. The ultra-marathoners will be running non-stop for a few days and not all will finish the race.

The advocacies I chose are like ultra-marathons. My positive advocacies of renewable energy and sustainable technologies deal with threats to our existence as a species. Some of these, you already know, like poisons in food, global warming and climate change. But others, you may not have heard about, like the sixth wave of species extinction, gyres in oceans, and microplastics in drinking water. These issues are often “out of sight” and therefore “out of mind”. (Google them!)

Ultra-marathoners cannot join a sprint or even a long-distance run, even if they wanted to. They will exhaust themselves too soon. They can only utter short greetings and engage in brief conversation, as others pass them by. Many Duterte issues are sprints. Marcos issues are medium- to long-distance runs. I am often asked to join these advocacies. I cannot be active in many of them even if I want to. I can only engage in brief conversations like this one. You will have to choose what advocacy to focus on. You are welcome to join us ultra-marathoners.

Just the same, I recognize that we are all running on the same road, and the races we are running are all interrelated. But I suggest you stay away from violent, especially armed, advocacies. And keep your eyes open against virtual prisons too.

The author is a senior fellow of Action for Economic Reforms. During the martial law years, he was part of a group that published the Taliba ng Bayan , one of the first underground newspapers against the Marcos dictatorship. He was arrested in 1974 and spent three years in jail as a political prisoner. The original version of this essay was delivered as a speech by the author in a forum on martial law at the University of the Philippines on September 16, 2017. This version has been edited.

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The Impact of Martial Law on the Philippines

Martial law in the Philippines - Wikipedia
Filipinos still deeply divided over Marcos presidency - Inquirer.net

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Batas Militar - Martial Law in the Philippines essay

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Friday, August 28, 2009

Argumentative Essay

Martial Law

Martial law is the temporary imposition of military rule in times of war or serious national emergencies. As of now, countries such as Egypt , Zimbabwe , Singapore , Russia are under the rule of martial law. In the Philippine History, it was September 21, 1972 when the life of every Filipino changed and for some turned into darkness. President Ferdinand Edralin Marcos signed the Proclamation No. 1081 and declared that the entire Republic of the Philippines is under martial law. Nowadays, news are spread all over the country that President Gloria Macapagal Arroyo nearly declared martial law.

Pangasinan Rep. Jose de Venecia once said that President Gloria Macapagal Arroyo will declare martial law if they were unable to get at least three-fourths vote to approve the constitution. He also told that during the siege of Peninsula Manila back in November 2007, Arroyo nearly imposed martial law. Later then, he said that it was also part of the plan to impose martial law during the height of the “ Hello Garci scandal “ back in 2005. ( Philippine Daily Inquirer, 2009) For some, they believed that it should not be implemented once again, but for others it should be.

During the Marcos regime, a lot of rules and regulations were implemented. A curfew of twelve midnight until four in the morning was imposed. Everyone was prohibited to stay outside his residence during these hours. Anyone who violates will be arrested and be brought to the nearest military camp. He will be released before 12 noon the next day and if reasons were found for him to stay longer, he will be taken to the nearest prison camp. Rallies and any form of group actions were banned. Anyone who violates will be arrested and will not be released until the president has ordered. However, reviews regarding professionals and education, seminars, civic and business meetings, simple religious ceremonies or other similar activities are allowed. Everyone is prohibited to bring firearms and deadly weapons outside his residence. Thus, these must be kept at home. Travel abroad was banned and only government officials, employees, scholars with important business outside the country are exempted. Vehicles with tinted glass windows and windshield are not allowed. Jeep, six-by-six trucks, weapons carriers, power wagons, armored trucks should not be painted with military colors. Even military colors such as army olive green, pc buff, navy gray, air forces royal blue are prohibited. Also, the used of sirens, bells, horns, whistles, dome lights are not allowed. Possession of subversive reading materials and other anti-government materials is punishable with all days of imprisonment. Spreading of falls information that may threaten people is strictly forbidden. Violators will be punished by imprisonment.

Nowadays, the Philippines is indeed suffering from global financial crisis and economical issues. Filipinos are bothered if the 2010 elections will be push through or President Arroyo will still stay longer in her position. There are a lot of rallies and protest against the Arroyo administration. Would this give the government a reason to implement martial law once more? A respondent said that martial law should be implemented in the Philippines for most of the people now do not pay respect to the government. They keep on protesting and blaming the government for all crisis that they are suffering. Constitution section 18 states that the president may suspend the writ of habeas corpus for a term not exceeding sixty days if there are rebellions or invasions happening and the public safety needs it. Martial law is just one way to stop the continuous bombings in Mindanao and threats that Manila will be the next target. During the time of martial law, there was a big silence on the streets and people are more cautious of their actions. For every mistake that they did would be equivalent to a certain punishment. The government will have an easier way of arresting the criminals. During the Marcos regime, once you are doubted to be involved in any subversive activities, you will be arrested even without warrant of arrest.

Progressive country like Singapore is under dictatorship form of government. People in Singapore are disciplined, even the simplest rule is being followed and that what makes their country progressive. It was said to be the world’s best place to do business due to its economic performance. Singapore is the Asia ’s 3 rd most “ network ready” country. It was said to be the best in foreign trade and investment.

According to Press secretary Cerge Remonde, President Arroyo has no reason to declare martial law. The people will be against it for they know that martial law violates human rights. The bill of rights states that every citizen has the right to fulfill his basic needs. He has the right to secure himself and his personal belongings. He has the freedom to speak and express himself. He must be informed of the public matters happening around him. If he is under investigation, he has the right to remain silent and to protect himself. Any form of torture, violence, threats shall not be used against him. Hidden detention places or solitary are strictly prohibited. He shall not be constrained to be a witness against himself. At the time of Marcos, anyone who is found against the government will be punished. There was a common occurrence of police brutality. A lot of people were tortured, some were buried alive, were beheaded and poisoned with acid. During the period of 1976-1980, a number of 21 persons died.

Martial law is run by a dictator. The life of the people will be controlled only by one person. Some say that the Philippines is under an unannounced martial law. It is due to the several deaths of media men and other public officials. Defense Secretary Gilberto Teodoro said that imposing martial law again will just add fuel to the anger of the people. They make sure that there will be no other president that will repeat the martial law. In bulatlat.com, it was said that there is a division among the military and police forces. Some officers attempts to withdraw from the Arroyo government.

Martial law should not be implemented again in the Philippines for every Filipino has the right to express himself. Martial law violates human rights and is not necessary to be implied again. It will just add up fuel to the anger of the people and will not make the country united.

Vizmanos, D. (2003). Martial Law Diary

Can Arroyo Regime Afford to Declare Martial law. retrieved August 23,2009 from www.bulatlat.com

No Reasons for GMA to Declare Martial law. retrieved August 23,2009 from www.philstar.com

Declaration State Rebellion Legal Superfluity. retrieved August 24, 2009 from www.jlp-law.com

Arroyo Nearly Declared Martial Law. retrieved August 22,2009 from www.newsinfo.inquirer.net

Singapore Rankings. Retrieved August 26,2009 from www.edb.gov.sg

L.M. Guerrero(1975). Today Began Yesterday; A historical approach

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#NeverAgain: A Recap and Analysis of Marcos’ Martial Law Declaration

48 years ago, the Philippines was placed under Martial Law. Here are the important facts and arguments essential to know in unveiling the Marcos regime’s dark legacy that still lurks upon the shadows, and burdens the Filipino people today.

Demise fell in the Philippines in 1972 when late dictator Ferdinand Marcos placed the country under Martial Law through signing Proclamation No. 1081 on September 21, with its formal declaration on September 23 at exactly 7:15 pm, leading to one of the darkest chapters in Philippine history.

“Justification” to the call for democracy abolishment

The issued declaration, enforcing military authority and suspension of civil rights, are said to be grounded with purposes and reasons that drove the late President Marcos to enforce the law.

Marcos explained that the Martial Law was signed for the need of extra powers to get rid of the national chaos from rebellion and cases of violence allegedly caused by communists; to protect the Filipino’s welfare from the threats of peace and order of the country; and to enhance growth for national development.

However, what pushed for the sudden emergency rule and declaration is the alleged ambush of then former Minister of Defense Juan Ponce Enrile that made the “martial law proclamation a necessity,” according to the diary entry of Marcos last September 22, 1972. Some reports, specifically the claim of Oscar Lopez and his family who lived near the incident area, stated that it was staged. Nonetheless, Enrile responded with confusing statements as he insisted the ambush’s validity in his memoir and documentary last 2014 howver, he disclosed in 1986 that it was staged to justify the declaration of the law.

Rundown of Events and Statistics

Martial Law lasted for almost a decade that suppressed any act of rebellion, enforced curfew hours, and oppressed personalities by the military and Philippine Constabulary. Here is a recap of the events from its context, origin, up to its end.

1969: Late President Marcos was re-elected despite electoral fraud allegations while guerilla wars, communist threats, and Muslim rebellions and separatists continue to arise.
September 21, 1972: Proclamation No. 1081 was signed by Marcos that extends his rule beyond the constitutional limit of two-term limit.
September 22, 1972: Ex-Senate President and former Defense Secretary Enrile was allegedly ambushed at night in his three-vehicle convoy at Wack-Wack subdivision. He was on his way home from briefing military officers for Martial Law implementation.
September 23, 1972: After hearing the incident, Marcos declared Martial Law formally via national television at 7:15 pm.
Successively, he issued these following General Orders and Letter of Instructions:
General Order No. 1, s. 1972, transferring all government powers to him;
Armed Forces of the Philippines were strengthened with an estimate of 60,000 personnel from the army, navy, air force, and constabulary.
General Order No. 2-A, authorizing the military to capture, arrest and detain approximately 8,000 personalities conspiracized as threats to his reign;
Arrested prominent ones include 1971 Constitutional Convention delegates Napoleon Rama , Enrique Voltaire Garcia , Jose Mari Velez, Journalists Max Soliven , Chino Roces , Teodoro Locsin Jr. , Hernando Abaya , Luis Mauricio , Luis Beltran , Amando Doronilla , Ernesto Granada, Senators Benigno “Ninoy” Aquino Jr., Jose “Pepe” Diokno , Ramon Mitra Jr. , Francisco “Soc” Rodrigo, and Justice Vicente Rafael
Letter of Instruction No. 1, shutting down mass and private media nationwide;
These consist of 7 major English dailies, 1 English-Filipino daily, 3 Filipino dailies, 1 Spanish daily, 4 Chinese dailies, 66 community newspapers, 11 English weekly magazines, 7 television stations, and 292 radio stations.
Media outlets that were only exempted from the imposed censorship are: Daily Express (Newspaper), TV Channel 9 (TV Station), and Kanlaon Broadcasting System (Radio Station).
Letter of Instruction No. 2, permitting public utility takeover;
Public utilities that were shut down are Manila Electric Company (MERALCO; Electricity and Power), Philippine Long Distance Telephone Company (PLDT; Telephone), National Waterworks and Sewerage Authority (NAWASA; Water), Philippine National Railways (PNR; Railway), Philippine Airlines, Air Manila, and Filipinas Orient Airways (Air transport services).
Letter of Instruction No. 3, mandating military to seize all Philippine-registered and privately-owned aircraft and watercraft; and
Letter of Instruction Nos. 4 and 5, commanding the Department of Foreign Affairs and Department of Justice to reject and not issue travel documents and immigration clearance to any citizen who requests to depart from the country.
1973 : Late President Marcos adopted the new 1973 Philippine Constitution that gave him absolute powers.
1977 : Opposition and critic Senator Aquino was sentenced to death but late President Marcos delayed his execution.
1980 : Senator Aquino was permitted to travel to the US for medical treatment.
January 17, 1981 : Martial Law has been lifted through the signing of Proclamation No. 2045 ahead of the first papal visit of Pope John Paul II in February. Late President Marcos has won the elections once again.
1983: Aquino returns to the Philippines but is shot dead at the Manila airport. However, no one was punished for ordering the assassination.
1985: Seeing that the country is in political and economic disaster, Marcos is under attacked by those in the media and the opposition. Resolution for his impeachment was signed by 56 assemblymen on the grounds of Marcos’ alleged rerouting of US aid for his personal use. A political movement starts to form for Aquino’s widow.
February 22, 1986: Millions of Filipinos united on EDSA for a mass protest to overthrow the rule of late President Marcos.
February 25, 1986: People Power led the military to abandon late President Marcos, who then fled to Pampanga with his family and other government officials before exile in Hawaii. According to the opposition, late President Marcos ransacked billions of dollars in his almost two decades of office.

Golden Age? Think again.

We have continuously heard various claims that Martial Law is the best period for the Philippines. However, its numbers, apart from the stories and its past, showcased otherwise. Filipinos served as commodities and victims of Marcos’ institutional and social deconstruction and impunity.

Let us debunk the myths and claims that were made with facts and numbers during the period to confirm the ‘glory’ that was wished to be illusioned.

Myth 1: Philippines has a booming infrastructure and a tiger and high economy.
Fact 1: Four out of ten families were poor before his rule while six out of ten Filipino families were poor by the end of his term
Poverty levels during and after his administration worsened with the high drop of wage and continuous increase of prices.
Fact 2: Farmers became poorer as daily wages of Filipino agricultural workers plunged by 30%.
In 1972, a farmer earned 42 pesos a day but it decreased up to 30 pesos as 1986 came. It even went as low as nearly half during 1974. The country’s coffers are also plundered that is estimately ranged from 5 billion to 10 billion dollars.
Fact 3: Skilled and unskilled workers wages also fell.
In urban areas, skilled and unskilled workers saw a decrease in their wages from 127 pesos to 35 pesos and 89 pesos to 23 pesos a day, respectively. Manufacturing was stagnated and work conditions also worsened, leading to underemployment from around 10% to 33%. This worsens the high poverty incidence of the country.
Fact 4: Prices of goods tripled sharply.
There has been a huge change in the Consumer Price Index of the country from food to non-food items. Basic commodities that were priced 100 pesos in 1976 cost more than 300-400 pesos in 1986.
Fact 5: Marcos’ policies reduced forest cover to almost a half, leading to massive deforestation.
Due to Marcos and his cronies’ pursuit for economic gains, unrestrained and massive exportation of timber caused a huge shave to the forest cover reduction. Martial Law took control of the country’s about 90% 18.7 million hectares of uplands and that includes the 11 million-hectare timberland.
Fact 6: Sick Man of Asia: Filipino’s Gross Domestic Product experienced the biggest decline in history from 1983-1985.
Income per person or the Philippine GDP per capita fell after 1982 which took 21 years later to recover from the lost development for decades.
Fact 7: International debt hit the roof during his period by 77 times in nominal terms and 24 times in real terms.
Outstanding external debt of 360 million dollars in 1961 rose steeply to whopping 28.26 billion dollars in 1986. They failed to meet their obligations to the point that it has become unsustainable exponentially. This debt-driven growth may temporarily explain the growth in infrastructure or some economic gains on the surface but that short-term gratification compromised its long-term effects gave more burden to the future generation as they pay back for the said debts.
Myth 2: Martial Law brought about peace and order.
Fact 1: This period showed an abundance of human rights violations and exploitation of those who were characterized in the act of subversion .
Fear has been the driver for Marcos’ rule and the bodies were its counts. According to American historian and educator Alfred McCoy article’s “Dark Legacy: Human Rights Under the Marcos Regime,” 3,275 extrajudicial killings were done during Marcos’ period which is higher than Chile’s Pinochet 2,115 casualties, 35,000 were tortured and 70,000 were jailed for any minor “infraction,” and 77% of the EJK victims (2,520 victims) were purposefully salvaged.
As human rights lawyer and son of the late senator Jose ‘Pepe’ Diokno who has been consistently against the Marcos dictatorship, Jose Manuel “Chel” Diokno has said at the International Forum on Lawfare at the De La Salle University-Manila (DLSU), the “real legacy of martial law” is law weaponization to silence and block political dissent. “[Marcos] was responsible for creating an oppressive climate of fear, obsequiousness and corruption that all but smothered the impartial administration of justice,” Diokno stated.
Fact 2: Thousands of Filipinos were exposed to various forms of torture.
According to the study of historian Michael Charleston Chua titled “TORTYUR: Human Rights Violations During The Marcos Regime,” physical torture involves electric shock, “San Juanico Bridge,” truth serum, Russian roulette, beating, pistol-whipping, water cure, strangulation, cigar and flat iron burns, pepper torture, being treated as an animal, and sexual abuse. He also added that elite torture units specialize in psychological and mental torture from humiliation, shaking principles, and threats of rape, harm, and death.
Fact 3: Freedom of information and speech is curtailed through media shutdown and abuse of youth leaders and journalists who have never seen the light of day .
Free press and mass media is the first casualty and target of Martial Law Declaration. Censorship is imposed, libels suits are filed on journalists, dissents were stamped out, and those who questioned the government will be punished, or worse, killed. Some of the stories from the thousands of tragic deaths were the following:
The first female and student activist who died in detention during the Martial Law rule is 23 year-old Pamantasan ng Lungsod ng Maynila communication arts student-journalist and youth leader Liliosa Hilao . Signs of torture, cigarette burns on her lips, injection marks on her arms, and lots of bruises were seen in her body when found in 1973. Her sister claimed that her removed internal organs was done to cover signs of torture and potential sexual abuse.
All because Imee Marcos was irked by the question on why the presidential daughter was Kabataang Barangay National Chairman in an open forum, Mapua Institute of Technology student Archimedes Trajano was forcibly taken from the venue, tortured for 12 to 36 hours and thrown out of a building’s second floor window. He was only 21 when his bloodied body was found in Manila on September 2, 1977.
23-year-old UP Journalism student Maria Elena Ang was arrested and beaten, electrocuted, water cured, and sexually violated when she was detained at Camp Crame.
Tondo community leader Trinidad Herrera was arrested in 1977. Her fingers, breasts, and vagina were electrocuted until her answers to the questions of the interrogators were passing enough to their standards.
In 1977, Boyet Mijares received a call that his disappeared father was still alive and he must see him. After a few days, the body—protruded eyeballs, punctured chest with multiple stab wounds, bashed head, and distorted hands, feet and genitals—of this 16-year old was found in Manila. His fault? Being the son of Primitivo Mijares , a whistleblower and writer in Marcos’ reign.

However, what made the Marcos memory tricky, with the arising positive and negative claims, is the different branches of experiences of different people that varied in their place of origin and social classes during the Martial Law period. Everything is in chaos and displaced, and not all have the same roots. Therefore, a need to process and to be rational in considering all factors is essential for those who have not suffered or remained unaware are also victims from filtered and shielded information during this period.

Scars that can’t be healed

Former President Marcos’ action to bring a “New Society” has truly taken a toll on the Filipinos. Memories remain haunted, the economy is in shambles, human rights are abused, political dissents are blocked, and what’s worse is that all it takes is the abuse of power of law from the government, or in particular, the highest in authority, who was supposed to protect its constituents rather than his self-interests.

“The lawyers who stood for us in the past realized one thing: that just as law can be used to oppress, the law can also be used to empower and the law can also be used to liberate,” Diokno added.

As founding dean of the DLSU College of Law and chairman of the Free Legal Assistance Group, Diokno mentioned that Marcos should be given credit—not only for the false and rose-colored glasses of information, but for “completely destroying judicial independence and for perverting [the] legal profession.”

Deep scars still prevail and wounds remain unhealed. Debts keep on skyrocketing are carried by every future generation but its fruits and worth has not proven its value. Government corruption and incompetence still exists, justice remains unserved, and the Marcoses did not even take responsibility for their action.

“ Hanggang ngayon wala pa kaming katarungan ,” Helena Jimenez said. Jimenez’s husband disappeared following his arrest last August 17, 1985.

Not a Political Issue

The stories aforementioned are just one of many injustices caused, that even financial compensation would not suffice. Nonetheless, the whole dilemma is not a political issue or story wherein Marcos is the villain and the Aquinos are the heroes, for both parties are at fault and have their own shortcomings. But rather, it is about the Filipinos and the country who shed blood, faced more than just death, experienced the pain, and became victims of the government's oppression as it took away the freedom, democracy, life, and future they fully deserve.

Given such, labeling former President Marcos and other tyrant leaders’ supporters and apologists, as well as the victims of Martial law, negatively is a sign of carelessness and insensitivity as it invalidates their actual memories, pain, and suffering and alienates the unity that the nation must envision. Respecting both sides and compassion is essential for there are different factors that concede to such thought.

However, selfishness, fear, self-preservation, apathy, and ignorance must be eradicated for that is what brought the country in the first place. Read books and cross-check facts for awareness. Stand up, be selfless, and protect everyone’s rights, especially the marginalized and oppressed, with louder calls and evidence as citizens caring for each other. Age and time of birth is not a standard for the validity of arguments and action, but rather on the facts and the truth that the past seizes to be seen.

Instead of worshipping politicians as gods, criticize and treat them with fairness, justice, and transparency—for that is what every Filipino deserves: a good government that is transparent, accountable, and liable for its actions in servant leadership to its constituents. Do not place the efforts of the people and victims in order for us to be liberated into waste.

As history starts to repeat itself once more, with the arising threats of the current administration, would we let ourselves be controlled, or let ourselves learn from the past, set out indifferences, and act not for our self-interests but for the country that deserves a better future? Once is enough— never again .

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Philippines Presidential Race: Marcos and the Specter of Martial Law

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With Bongbong entering the race, and the Dutertes floating around the edges, the Philippine presidential election is stirring up dark memories.

Philippines Presidential Race: Marcos and the Specter of Martial Law

Former senator Ferdinand “Bongbong” Marcos Jr. poses after filing his certificate of candidacy for next year’s presidential elections with the Commission on Elections at the Sofitel Harbor Garden Tent in Manila, Philippines Wednesday, October 6, 2021.

Most would agree that the martial law period in the Philippines from 1972 to 1986 was a dark time, marred by violence, the suspension of basic civil liberties, and unparalleled thievery by those in power. Former dictator Ferdinand Marcos is long gone now; after being deposed by a popular uprising in 1986 he died in exile in Honolulu in 1989. But his feats and his memory continue to polarize Philippine politics almost as much as when he was in power.

Marcos’ son, Ferdinand Marcos Jr., better known as “Bongbong,” officially announced his candidacy for the upcoming May 2022 presidential election October 5 with clear intentions to revitalize his father’s legacy. Almost half a century since military rule was declared, the Philippines may yet see its instigators rise to power once more. In his announcement, the dictator’s son spoke of bringing back “unifying leadership” to the country, perhaps alluding to his father’s rule, when all were united under the whim of one man.

While the sins of the father do not always mean the son is to blame, Bongbong has made it clear to the public many times that he sees the martial law period as a positive contribution to the trajectory of Philippine society. On a popular talk show last month, Marcos told the host that his father’s tenure carried the Philippines into “the modern world.” The TV appearance was one of many increasingly high-profile stunts designed to plant Bongbong in the public consciousness. Later in the month, he was nominated as the standard-bearer for the Kilusang Bagong Lipunan (Movement for a New Society), a political party founded by his father.

Bongbong’s popularity has steadily grown alongside the presidency of Rodrigo Duterte. It helps that the latter mimics the authoritarianism of the former’s father and has amassed many comparisons with the dictator. Duterte and the Marcoses generally have strong political ties between them. The family has made favorable comments toward Duterte even during the early days of his bid for office. Duterte granted Ferdinand Marcos a hero’s burial in Manila in 2016, 27 years after his death and 23 years after his body was brought back to the Philippines. Marcos had been the only president denied such an honor.

Like Father, Like Son?

Bongbong Marcos idolizes his father. At the peak of the family’s far-reaching powers in the mid-1980s, Bongbong served as vice governor, and then governor of their home province, Ilocos Norte. He was also appointed board chairman of the Philippine Communications and Satellite Corporation. He was in his 20s at the time, and while there has never been any categorical or damning evidence as to his role in the regime’s corruption, as part of the family’s inner circle, it’s a safe assumption that he benefited. His mother, Imelda Marcos, was convicted of seven counts of graft in 2018.

The Marcoses accumulated around $658 million during their time in power, according to Supreme Court findings in 2003. There were over 3,200 casualties of the Marcos regime, while over 70,000 dissidents were thrown in jail during Marcos’ reign. The family continues to deny any wrongdoing. The Marcoses and their critics accuse each other of historical revisionism.

Bongbong’s bold claims about his father ushering in modernity is the kind of rhetoric that speaks to a specific set of voters. It sparks debate on whether or not the Philippines was actually economically well off during the Marcos period and, for those who look back with warm nostalgia, it persuades some to think that a degree of violation of human rights may be necessary to achieve progress. This is a narrative not unlike those peddled by many of Duterte’s supporters.

In truth, however, the Philippine GDP dropped dramatically in the last two years of Marcos’ term. Several pet infrastructure projects were abandoned, such as the Bataan Nuclear Power Plant. Moreover, the debt accumulated during the Marcos period, eventually totaling 470 billion Philippine pesos, four times larger than the entire national budget during the last year of his rule. The economy was driven to shambles and the plundering didn’t stop, only helped along with the collapse.

Bongbong has more than just defended his father’s legacy, but built his career on a desire to repeat it. Both father and son were congressmen, then senators, before running for the top post in the country. If Bongbong’s recent public appearances are to any indication, his current platform is one of returning the Philippines to an illusion of its former glories. In a sense, his electoral pitch is “Make the Philippines Great Again.”

Never Again

Opposition forces are wary of a Duterte-Marcos tandem for the upcoming election, whatever shape or form that may take: Bongbong with a Duterte as his running mate, or even the two camps mutually supporting each other’s efforts. At the moment, the landscape of presidential candidates is still unpredictable, with the president himself making surprise turns left and right. First, Duterte said he’d make a run for the vice presidential spot,which in the Philippines is elected separately from the president, retaining his presence in the executive suite like Marcos did. Next, he said he’s retiring from politics, and his ally and long-time aide, Christopher “Bong” Go, will take his place. In a statement, Go said “I intend to continue the great programs and genuine change that began with President Duterte.” Sara Duterte, the president’s daughter and current mayor of Davao City, could be Go’s running mate.

It’s all still up in the air.

Both Go and Sara share the same political drive of the elder Duterte to round up and eliminate all of their political rivals while beefing up the presence of the armed forces in the process.

Renato Reyes Jr., secretary general of the broad opposition umbrella group Bayan (People), said, “The Duterte-Marcos tandem is the gravest, most dangerous threat to the democratic aspirations of the Filipino people. It is intended to cover-up systemic plunder and legitimize gross human rights violations. We cannot let it succeed. We must do all we can to prevent this tandem-of-doom from happening. All democratic forces must come together and exert the greatest effort to prevent a Duterte dynasty or a Marcos restoration in Malacanang Palace. This has become a matter of national survival.”

Whatever the combination, the prospect of both Bongbong and a Duterte-backed candidate making a dash to lord over the country for the next six years can have terrifying consequences for the Philippines. Either the state is thrust into an unwanted martial law throwback, or it faces more of the same creeping authoritarianism, which now isn’t far off from all-out state dominion.

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YEARS OF INVESTIGATION

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Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It

Summary: The concept has never been well understood. What should be clear, however, is that the president lacks the authority to declare it.

Executive Power

Introduction

On August 20, 1942, military police in Honolulu, Hawaii, arrested a man named Harry White. Under normal circumstances, the U.S. military would not have been involved in his case. He was a stockbroker, not a soldier, and neither he nor his business had any connection with the armed forces. Even his alleged crime — embezzlement of funds from a client — was a violation of civilian, not military, law. footnote1_cJgyoKQEPk5O 1 Duncan v. Kahanamoku, 327 U.S. 304, 309–10 (1946).

But nothing about Hawaii was normal in 1942. It had been under martial law since the Japanese attack on Pearl Harbor in December 1941. footnote2_kbHoIHL9UYFl 2 Although Hawaii was an incorporated territory, not a state, in 1942, the Supreme Court found that the Constitution applied there in full and that the legality of martial law must be analyzed as though it were a state. Duncan , 327 U.S. at 319. Its courts were closed and replaced with military tribunals. The rules governing everyday life were set not by an elected legislature but by the military governor. The army controlled every aspect of life in the islands, from criminal justice to parking zones and curbside trash removal. footnote3_ojqs8IJuOdMJ 3 Harry N. Scheiber and Jane L. Scheiber, Bayonets in Paradise: Martial Law in Hawai’i during World War II (Honolulu: University of Hawai’i Press, 2016).

White was brought before a military provost court. His attorney objected to the court’s jurisdiction, requested a jury trial, and asked for time to prepare a defense. But Major Murrell, the presiding military officer, rejected these motions. Instead, just five days after being arrested, White was tried without a jury, convicted, and sentenced to five years in prison. footnote4_oL8AH0yWF6bs 4 Duncan , 327 U.S. at 309–10; and Ex parte Duncan, 146 F.2d 576, 577 (9th Cir. 1945).

As White’s story illustrates, martial law — a term that generally refers to the displacement of civilian authorities by the military — can be and has been employed in the United States. Indeed, federal and state officials have declared martial law at least 68 times over the course of U.S. history . footnote5_oC8UhDGpG3Mp 5 Joseph Nunn, Guide to Declarations of Martial Law in the United States , Brennan Center for Justice, August 20, 2020, https://www.brennancenter.org/our-work/research-reports/guide-declarations-martial-law-united-states . Yet the concept has never been well understood. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has addressed it on only a handful of occasions, and the Court’s reasoning in these decisions is inconsistent and vague. footnote6_yt4raD77vItM 6 Duncan , 327 U.S. 304; Sterling v. Constantin, 287 U.S. 378 (1932); Moyer v. Peabody, 212 U.S. 78 (1909); Ex parte Milligan, 71 U.S. 2 (1866); and Luther v. Borden, 48 U.S. 1 (1849). The precedents are also old: the most recent one — in which the Court overturned Harry White’s conviction — was decided almost 75 years ago.

This report aims to clear up the confusion that surrounds martial law. To do so, it draws on recent legal scholarship, the few rules that can be gleaned from Supreme Court precedent, and general principles of constitutional law. It concludes that under current law, the president lacks any authority to declare martial law. Congress might be able to authorize a presidential declaration of martial law, but this has not been conclusively decided. State officials do have the power to declare martial law, but their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

Outside of these general principles, there are many questions that simply cannot be answered given the sparse and confusing legal precedent. Moreover, although lacking authority to replace civilian authorities with federal troops, the president has ample authority under current law to deploy troops to assist civilian law enforcement. Until Congress and state legislatures enact stricter and better-defined limits, the exact scope of martial law will remain unsettled, and the president’s ability to order domestic troop deployments short of martial law will be dangerously broad.

Part I: What is Martial Law?

“Martial law” has no established definition. footnote1_xsX9XoEvRndT 1 Duncan , 327 U.S. at 315 (“The term martial law carries no precise meaning.”).

In the United States, however, the military’s domestic activities typically fall into one of three categories. First, the armed forces sometimes assist civilian authorities with “non–law enforcement” functions. For example, in the aftermath of Hurricane Katrina in 2005, the military deployed helicopters along the Gulf Coast to carry out search-and-rescue missions that local governments were unable to do themselves. Second, and far less frequently, the military assists civilian authorities with “law enforcement” activities. For example, state and federal troops were deployed to help police suppress the 1992 Los Angeles riots. Third, on some occasions, the military has taken the place of the civilian government. This is what happened in Hawaii during World War II.

Usually, but not always, the term “martial law” refers to the third category. It describes a power that, in an emergency, allows the military to push aside civilian authorities and exercise jurisdiction over the population of a particular area. Laws are enforced by soldiers rather than local police. Policy decisions are made by military officers rather than elected officials. People accused of crimes are brought before military tribunals rather than ordinary civilian courts. In short, the military is in charge. footnote2_fdNEfclb3ZGt 2 William C. Banks and Stephen Dycus, Soldiers on the Home Front: The Domestic Role of the American Military (Cambridge, MA: Harvard University Press, 2016), 198; John Fabian Witt, “A Lost Theory of American Emergency Constitutionalism,” Law and History Review 36 (August 2018): 581–83; Stephen I. Vladeck, “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act,” Temple Law Review 80 (Summer 2007): 391–439; Stephen I. Vladeck, “Emergency Power and the Militia Acts,” Yale Law Journal 114 (Fall 2004): 149, 162; and George M. Dennison, “Martial Law: The Development of a Theory of Emergency Powers, 1776–1861,” American Journal of Legal History 18 (January 1974): 61.

This is a dramatic departure from normal practice in the United States. The U.S. military, when allowed to act domestically at all, is ordinarily limited to assisting civilian authorities. Martial law turns that relationship on its head. The displacement of civilian government distinguishes it from other emergency powers, such as the suspension of the writ of habeas corpus. Suspending the writ allows the government to detain and hold individuals without charge but does not imply any unusual role for the armed forces. While a declaration of martial law might be accompanied by a suspension of habeas corpus, they are distinct concepts.

Martial law has not always meant what it does today. The term first appeared in England in the 1530s during the reign of King Henry VIII. footnote3_xLqppzEcVoHl 3 John M. Collins, Martial Law and English Laws, c. 1500–c. 1700 (Cambridge: Cambridge University Press, 2016), 27. At that time and for centuries afterward, martial law generally referred to what is now called “military law.” footnote4_e1LnSyzmge9w 4 Collins, Martial Law and English Laws , 3–7; and Dennison, “Martial Law,” 52. This is the law that applies when a soldier is court-martialed. In the modern United States, it is codified in the Uniform Code of Military Justice. footnote5_tCn5zOlY7MGj 5 Uniform Code of Military Justice, 64 Stat. 109, 10 U.S.C. §§ 801–946.

U.S. law did not recognize martial law as an emergency power until the mid-19th century. Before that time, the idea of allowing military rule in an emergency was considered outrageous — as evidenced by the national reaction to the first declaration of martial law in U.S. history. In December 1814, toward the end of the War of 1812, Gen. Andrew Jackson led a small army in the defense of New Orleans against a much larger invading British force. As part of his defensive preparations, Jackson imposed martial law on the city. He censored the press, enforced a curfew, and detained numerous civilians without charge. Moreover, he continued military rule for more than two months after his famous victory at the Battle of New Orleans had ended any real threat from the British. footnote6_wCzXW7QYEmpp 6 Matthew Warshauer, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship (Knoxville: University of Tennessee Press, 2006), 19–46.

Jackson argued that his actions were justified because the government in New Orleans had ceased to function as a result of the impending British attack, leaving the military as the only body able to protect the city. In that situation, he claimed, the military had the authority to do anything that was “necessary” to preserve New Orleans. footnote7_o6WsQOGk4Ysy 7 Dennison, “Martial Law,” 61–62; and Vladeck, “Field Theory,” 422. This was a novel argument, and it did little to explain why he kept the city under martial law for so long.

At the time, almost everyone rejected Jackson’s theory, which perhaps is unsurprising. The founding generation had been deeply suspicious of military power. That suspicion is apparent in the Declaration of Independence, which accuses King George III of rendering “the Military independent of and superior to the Civil power” — and in the Constitution, which pointedly divides the war powers between Congress and the president, and requires that the commander in chief always be a civilian. footnote8_wX2d6iczBRxE 8 Vladeck, “Emergency Power and the Militia Acts,” 156–58.

In an 1815 case, the Louisiana Supreme Court described Jackson’s conduct in New Orleans as “trampling upon the Constitution and laws of our country.” footnote9_dFVKdWGHQJgh 9 Dennison, “Martial Law,” 64 (citing Johnson v. Duncan et al. Syndics, 1 Harr. Cond. Rep. 157–70 [1815]). Similarly, acting Secretary of War Alexander Dallas explained in a letter to Jackson that martial law had no legal existence in the United States outside of the Articles of War, the predecessor to the modern Uniform Code of Military Justice. footnote10_d9P6a0td34rx 10 Dennison, “Martial Law,” 64 (citing Dallas to Jackson, 12 April, 1 July 1815, in John Spencer Bassett and J. Franklin Jameson, eds., Correspondence of Andrew Jackson , vol. 2, Andrew Jackson Papers, Library of Congress, Washington, DC, 1926–35, 203–4, 212–13). Overall, the consensus in 1815 was that martial law was simply another term for military law, and that military jurisdiction could extend no further than the armed forces themselves.

After Jackson relinquished control of New Orleans back to its civilian government, the local federal district judge held him in contempt of court, fining him $1,000. Jackson paid the fine, and for the next 27 years, nothing more came of the incident. However, in the early 1840s, the now-aging former president orchestrated a campaign in Congress to refund him the cost of the fine, plus interest. footnote11_xYt8xPt35xly 11 Warshauer, Andrew Jackson and the Politics of Martial Law , 6–12.

The ensuing congressional refund debates marked the beginning of a shift in how Americans understood martial law. By pursuing a refund, Jackson hoped to set a precedent for, as one historian put it, “the legitimacy of violating the Constitution and civil liberties in times of national emergency.” footnote12_iyS2NfDPcGAR 12 Warshauer, Andrew Jackson and the Politics of Martial Law , 5–6. He got exactly what he wanted. Congress enacted the refund bill in February 1844, symbolically endorsing Jackson’s three-month-long imposition of martial law in New Orleans almost 30 years after it had ended. footnote13_tHfiJYj2iuDA 13 Act of February 16, 1844, ch. 2, 5 Stat. 651.

By this time, the United States’ second experience with martial law was already underway in Rhode Island. The so-called “Dorr War” involved a dispute over the state’s first constitution, which severely restricted the right to vote. In 1842, after efforts to reform this system had been rebuffed for years, a large group of Rhode Islanders led by Thomas Dorr organized its own constitutional convention, adopted a new constitution, held elections, and declared itself the true government of Rhode Island. When Dorr rallied his supporters to assert their authority by force, the Rhode Island General Assembly declared martial law and called out the state militia to suppress the rebellion. footnote14_ebQE3xazjnSF 14 Luther , 48 U.S. at 35–37; and Dennison, “Martial Law,” 68.

In 1849, the U.S. Supreme Court upheld the legality of Rhode Island’s martial law declaration in Luther v. Borden . footnote15_ltIdRdToxSMW 15 Luther , 48 U.S. at 47.

Writing for the majority, Chief Justice Roger Taney — of Dred Scott infamy — embraced Andrew Jackson’s idea that martial law allows civilians to be subjected to military jurisdiction in an emergency. He described this power as an essential part of states’ right to defend themselves and suggested that it is inherent to all sovereign governments. footnote16_f5KhfUs84GpZ 16 Luther , 48 U.S. at 45. By endorsing the constitutionality of martial law, the Supreme Court finished what Congress had started with the refund bill. The Luther decision makes clear that martial law exists as an emergency power that can be invoked in the United States, at least by state legislatures. footnote17_lxE6Q5b6hrV3 17 Vladeck, “Field Theory,” 428–29; and Dennison, “Martial Law,” 76.

But Luther also leaves many questions unanswered. It does not explain the legal basis for martial law, its scope, when it may be declared, or who is authorized to declare it. Indeed, the Supreme Court has never directly held, in Luther or any subsequent case, that the federal government has the power to impose martial law. In one case, the Court suggested in “dicta”— a term for language in a judicial opinion that is not a necessary part of the holding and is not strictly legally binding — that the federal government may declare martial law. footnote18_efFiEU4OowhN 18 Milligan , 71 U.S. at 127. It assumed the same in another case, but only for the purpose of deciding a narrower legal question. footnote19_wK6EVowAKdaF 19 Duncan , 327 U.S. at 313. Neither of those decisions conclusively affirms that a federal martial law power exists.

Indeed, the Supreme Court has never directly held, in Luther or any subsequent case, that the federal government has the power to impose martial law.

Over time, however, consistency of practice has papered over gaps in the legal theory. The United States made extensive use of martial law during the Civil War, imposing it on border states like Missouri and Kentucky where U.S. forces battled with Confederate insurgents. footnote20_vUTJoZuj4wGf 20 Vladeck, “Emergency Power and the Militia Acts,” 175–83; and Banks and Dycus, Soldiers on the Home Front , 203–7. The Confederacy, too, relied on it heavily. footnote21_w8YVOEQRpC2l 21 Mark E. Neely Jr., Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism (Charlottesville: University Press of Virginia, 1999). The practice did not end with the war: in the 90 years between the start of the Civil War and the end of World War II, martial law was declared at least 60 times. footnote22_vAi4SvzIvoUK 22 Joseph Nunn, Guide to Declarations of Martial Law in the United States , Brennan Center for Justice, August 20, 2020. What had been manifestly unconstitutional in the eyes of the Louisiana Supreme Court in 1815 had become a relatively ordinary part of American life by the end of the 19th century.

States — and state governors in particular — have declared martial law far more often than the federal government. In the 1930s, Oklahoma Governor William “Alfalfa Bill” Murray declared martial law at least 6 and perhaps more than 30 times during his tenure. footnote23_kYkCyeV9SCsb 23 Debbie Jackson and Hilary Pittman, “Throwback Tulsa: Colorful ‘Alfalfa Bill’ Fell Short in Presidential Bid,” Tulsa World , July 14, 2016, https://www.tulsaworld.com/news/local/history/throwback-tulsa-colorful-alfalfa-bill-fell-short-in-presidential-bid/article_23b7bd2f-12ce-5415-a92f-937ecb40c0a6.html. City mayors and generals within states’ National Guard forces have also declared martial law on occasion. However, no state legislature has done so since the Rhode Island General Assembly in 1842.

Not all of the military deployments under these declarations included what we today consider the defining feature of “martial law” — the displacement of civilian authority. Many cases involved the use of the military to reinforce local police. In other cases, however, troops effectively replaced the police, and in some instances, they were used to impose the will of state or local officials rather than to enforce the law.

State officials have sometimes declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of 1900 or the 1900 Galveston hurricane. footnote24_rEqBePlXZv8M 24 Mary Plazo, “That Akron Riot,” Past Pursuits: A Newsletter of the Special Collections Division of the Akron-Summit County Public Library 9 (Summer 2010): 7, https://www.akronlibrary.org/images/Divisions/SpecCol/images/PastPursuits/pursuits92.pdf; and “Martial Law at an End: Conditions at Galveston Improving,” Los Angeles Herald , September 21, 1900, 2. Far more often, however, they have used martial law to break labor strikes on behalf of business interests. For example, in September 1903, at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners. The Colorado National Guard conducted mass arrests of striking workers and detained them in open-air bull pens. The Guard even ignored state court orders to release the prisoners, with one officer declaring, “To hell with the constitution.” footnote25_ajadcDKyxw1g 25 Elizabeth Jameson, All That Glitters—Class, Conflict, and Community in Cripple Creek (Champaign: University of Illinois Press, 1998), 207–8.

States’ use of martial law continued well into the 20th century, reaching a peak in the 1930s — a decade that also saw an increase in the flagrant abuse of this power by governors. In 1933, for example, Georgia Governor Eugene Talmadge declared martial law “in and around” the headquarters building of the state Highway Board as part of a scheme to force out some of the board’s commissioners, whom he had no legal power to remove. This “coup de highway department” was ultimately successful. Remarkably, Talmadge’s successor, Governor Eurith Rivers, tried to do the same thing in 1939, but his attempt failed. footnote26_rOuRmt8kwLNQ 26 “National Affairs: Martial Law,” Time, July 3, 1933, http://content.time.com/time/magazine/article/0,9171,745726,00.html; and Miller v. Rivers, 31 F. Supp. 540 (M.D. Ga. 1940), rev’d as moot, 112 F.2d 439 (5th Cir. 1940).

Misuses of martial law were not confined to Georgia. In 1931, Texas Governor Ross Sterling engaged in a standoff with the federal courts over his government’s ability to enforce a regulation limiting oil production by private well operators. At the climax of the conflict, Sterling imposed martial law on several counties — despite the total absence of violence or threats of violence — and deployed the Texas National Guard to enforce the regulation. He declared that the federal courts had no power to review his decision. The U.S. Supreme Court disagreed, explaining that “[t]here is no such avenue of escape from the paramount authority of the Federal Constitution.” footnote27_s36f86Gv8Djl 27 Sterling , 287 U.S. at 398, 403–4. It ordered Texas to stop using the military or any other means to enforce the regulation.

The federal government has used martial law far less frequently than the states, imposing it only a few times since the end of Reconstruction. Generals have declared it more often than the president, such as in 1920, when U.S. Army Gen. Francis C. Marshall imposed martial law on Lexington, Kentucky, in order to suppress a lynch mob attempting to storm the courthouse. footnote28_euwRonVeQaYp 28 Peter Brackney, The Murder of Geneva Hardman and Lexington’s Mob Riot of 1920 (Charleston, SC: History Press, 2020), 97–98. Most recently, the federal government declared martial law in Hawaii after the Japanese attack on Pearl Harbor in 1941, which initiated three years of absolute military rule in the islands. footnote29_dAZjNQ1NQJBf 29 Scheiber and Scheiber, Bayonets in Paradise .

As abruptly as it took hold in the mid-19 th century, martial law disappeared from American life after World War II. The federal government has not declared martial law since it restored civilian rule to Hawaii in 1944. At the state level, martial law was last declared in 1963, when Maryland Governor J. Millard Tawes imposed it on the city of Cambridge for more than a year in response to clashes between racial justice advocates and segregationists. footnote30_f5Aci6AQO5XE 30 Joseph R. Fitzgerald, The Struggle Is Eternal: Gloria Richardson and Black Liberation (Lexington: University Press of Kentucky, 2018), 121–29; Rebecca Contreras, “Cambridge, Maryland, Activists Campaign for Desegregation, USA, 1962–1963,” Global Nonviolent Action Database , last modified July 27, 2011, accessed July 30, 2020, https://nvdatabase.swarthmore.edu/content/cambridge-maryland-activists-campaign-desegregation-usa-1962–1963; Hedrick Smith, “Martial Law Is Imposed in Cambridge, Md., Riots,” New York Times , July 13, 1963, 1, 6, https://nyti.ms/30fTf3i; and “Tawes Withdraws Last Guard Troops in Cambridge, Md.,” New York Times , July 8, 1964, 18, https://nyti.ms/39PfcK0 . But even if the power to declare martial law has not been used in decades, it still exists in the case law and in the record books — and it remains poorly understood.

Part II: Can the President Unilaterally Declare Martial Law?

Despite the widespread use of martial law in the century that followed the Supreme Court’s ruling in Luther , many of the legal questions surrounding it remain unanswered. The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively. When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it.

Insofar as the Supreme Court has said anything on these questions, its statements have been inconsistent. During the 19th century, the Court suggested in dicta that a federal martial law power was “implied in sovereignty” or justified by “necessity.” footnote1_z8gEBjyFmt6P 1 Luther , 48 U.S. at 45; and United States v. Diekelman, 92 U.S. 520, 526 (1875). In the early 20th century, it seemed to believe that the state martial law power was related to the executive’s constitutional power to “execute the law.” footnote2_qUzdoq8ZJWCk 2 Sterling , 287 U.S. at 398; and Duncan , 327 U.S. at 335 (Stone, C. J., concurring in the result). Note that both the portion of Luther that Chief Justice Stone cites and the rest of his opinion directly contradict his own opening proposition. During World War II, the Court assumed (without deciding) that Congress could authorize a federal declaration of martial law but did not make clear whether that authorization was required . footnote3_i9WXFCupm8OH 3 Duncan , 327 U.S. at 312–24. In contrast, in a much earlier but influential 1866 concurring opinion, Chief Justice Salmon Chase did conclude that federal martial law exists and that it must be authorized by Congress. footnote4_gi7r0ceS5kN9 4 Milligan , 71 U.S. at 132–42 (Chase, C. J., concurring in part and dissenting in part).

Looking only at the Supreme Court’s martial law decisions, one can pick and choose from them to argue for almost anything. The case law is inconsistent and too sparse for a clear pattern in the Court’s reasoning to emerge. It is also old: even the most recent Supreme Court decision on martial law — Duncan v. Kahanamoku , decided in 1946 — predates many significant developments in U.S. constitutional law. footnote5_hOoYAxbe928M 5 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Mapp v. Ohio, 367 U.S. 643 (1961); Massiah v. United States, 377 U.S. 201 (1964); Griswold v. Connecticut, 381 U.S. 479 (1965); Miranda v. Arizona, 384 U.S. 436 (1966); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008); and War Powers Resolution, 50 U.S.C. §§ 1541–48. The precedents thus provide little help in determining the legal basis for martial law — or, assuming that federal martial law is even permissible, whether its use is controlled by Congress or the president.

One must therefore turn to a different Supreme Court case for guidance: Youngstown Sheet & Tube Co. v. Sawyer . footnote6_aCPYAvLZCtaI 6 Youngstown , 343 U.S. 579. Decided in 1952, Youngstown held that President Harry Truman could not seize U.S. steel mills to prevent a labor dispute from disrupting the nation’s supply of steel in wartime. The decision — and Justice Robert Jackson’s concurring opinion in particular — has since become the doctrinal lodestar for assessing any exercise of power by the executive. footnote7_tBxm2HSXYeTd 7 Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 1350 (2008) (“Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area.”); Dames & Moore v. Regan, 453 U.S. 654, 661 (1981) (“Justice Jackson in his concurring opinion in Youngstown . . . brings together as much combination of analysis and common sense as there is in this area.”); and H. Jefferson Powell, The President as Commander in Chief: An Essay in Constitutional Vision (Durham, NC: Carolina Academic Press, 2014), 53–135. Consider, for example, if the president were to declare martial law over the U.S. border with Mexico, deploying the army to enforce federal immigration laws and setting up military tribunals to prosecute alleged violators. In that hypothetical scenario, a federal court would likely apply Youngstown to decide whether the president had exceeded executive authority.

Under Youngstown , the courts show varying degrees of deference to presidential action, depending on whether the president is acting in accordance with or contrary to the will of Congress. Justice Jackson identified three “zones” into which presidential actions might fall. In the first zone, Congress has authorized the president’s conduct, entitling it to maximum deference from the courts. The court will uphold the action unless the federal government, as a whole, lacks the power to act. In the second zone, Congress has said nothing on the matter, so courts must search the Constitution to find some independent authority for the president’s action. In the third zone, the president’s conduct is contrary to laws Congress has passed. These actions are impermissible unless Congress has overstepped its own powers. footnote8_iJRmbLTs5MVI 8 Youngstown , 343 U.S. at 635–38 (Jackson, J., concurring).

Although Youngstown did not address a declaration of martial law, Justice Jackson’s concurring opinion briefly mentioned the concept. Having stated that the Constitution’s drafters “made no express provision for exercise of extraordinary authority because of a crisis,” he included the following caveat in a footnote: “I exclude, as in a very limited category by itself, the establishment of martial law.” footnote9_iNxF7tRUGe3R 9 Youngstown , 343 U.S. at 650n19 (Jackson, J., concurring). This language acknowledges the possibility that martial law might exist as an emergency power, despite the lack of any express provision for it in the Constitution. It does not, however, suggest where that power lies, and certainly does not indicate that it belongs solely to the executive branch. Nor does it render the three-zone test inapplicable in the context of martial law.

How would a unilateral presidential declaration of martial law on the southern border fare under Youngstown ’s three-zone test? We start with what Congress has said: Congress has legislated so extensively with respect to the domestic use of the military — through, for example, the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non Detention Act, and various other provisions within Title 10 of the U.S. Code — that it has “occupied the field.” footnote10_ml7mgxc11HXQ 10 18 U.S.C. § 1385; 10 U.S.C. §§ 251–55; 42 U.S.C. § 5121 et seq.; 18 U.S.C. § 4001(a); 10 U.S.C ch. 15, §§ 271–84; and Youngstown , 343 U.S. at 639 (Jackson, J., concurring). This means that Congress has created such a dense and comprehensive network of rules that anything the president does in this area that is not affirmatively authorized by statute is almost necessarily against Congress’s will. Such actions, including a hypothetical presidential declaration of martial law that Congress has not authorized, would fall within Youngstown ’s third zone.

Furthermore, the Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities — even if they are merely supplementing rather than supplanting civilian authorities — except when doing so is expressly authorized by Congress. footnote11_ir9F1e09nY0L 11 Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law , CRS report no. R42659 (Washington, DC: Congressional Research Service, 2018), https://fas.org/sgp/crs/natsec/R42659.pdf. The Posse Comitatus Act nominally allows for constitutional exceptions to its general rule, but none exists. As it is generally understood, martial law necessarily involves military participation in civilian law enforcement. While there are a number of statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law, as part III of this report explains. Therefore, the president’s declaration of martial law would directly violate the act, which again places it within zone 3 under Youngstown .

In zone 3, the president’s powers are at their “lowest ebb” and presidential actions are rarely upheld. footnote12_fkB45SqfPfap 12 Youngstown , 343 U.S. at 639 (Jackson, J., concurring). This reflects a general rule of constitutional law: that laws passed by Congress within the scope of its own constitutional powers “disable” contrary executive action. footnote13_mqv0W5jGFSYo 13 Hamdan , 548 U.S. at 593n23 (“Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”); Youngstown , 343 U.S. at 654–55 (Jackson, J., concurring); Little v. Barreme, 6 U.S. 170 (1804); and Powell, President as Commander in Chief , 101–8. In other words, when Congress and the president disagree, Congress wins. Under Youngstown , this rule may be overcome — and the president can act against the will of Congress — only when a “conclusive and preclusive” grant of presidential power in the Constitution authorizes the challenged action. footnote14_j88T2fOksLzI 14 Youngstown , 343 U.S. at 637–38 (Jackson, J., concurring). If the Constitution gives Congress any powers in that area, then the president’s authority is not “conclusive and preclusive,” and Congress’s will must prevail.

The critical question, then, is how the Constitution allocates the powers related to domestic deployment of the military. Three provisions of the Constitution implicate that sort of authority: the Calling Forth Clause in Article I, the Guarantee Clause in Article IV, and the Commander in Chief Clause in Article II. footnote15_rawk1Dhbl9zL 15 U.S. Const. art. I, § 8, cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”); U.S. Const. art. IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”); and U.S. Const. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”). The balance of power established by these provisions decisively favors Congress over the president.

The Calling Forth Clause empowers Congress to “provide for” — that is, to regulate and control — the authority and procedures for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in Youngstown , this provision was “written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic.” footnote16_ocguJF6O3vir 16 Youngstown , 343 U.S. at 644 (Jackson, J., concurring). It thus “underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.” footnote17_hOKJw8zYVQLY 17 Youngstown , 343 U.S. at 644 (Jackson, J., concurring); and Stephen I. Vladeck, “The Calling Forth Clause and the Domestic Commander-in-Chief,” Cardozo Law Review 29 (January 2008): 1091–108.

The Guarantee Clause requires the United States to “protect each [state] against Invasion; and on Application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic Violence.” This language is less clear-cut than the Calling Forth Clause, but it certainly does not constitute a “conclusive and preclusive” commitment of power to the executive. Instead, it grants authority to the federal government as a whole. Furthermore, it only allows unilateral federal action in the case of invasion. In the event of “domestic violence,” the affected state must request help before the federal government can act.

Lastly, the Commander in Chief Clause would not enable the president to unilaterally declare martial law in disregard of the Posse Comitatus Act and other statutes that regulate the domestic use of the military. To start, the Commander in Chief Clause is not a source of domestic regulatory authority for the president. footnote18_rohDgifrrc5h 18 Youngstown , 343 U.S. at 643–44 (Jackson, J., concurring); and Powell, President as Commander in Chief , 120–21. As Justice Jackson explained in Youngstown , “the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy” would also mean the president was “Commander-in-Chief of the country, its industries and its inhabitants.” footnote19_pCzA3zhBqJPl 19 Youngstown , 343 U.S. at 643–44 (Jackson, J., concurring). While the clause grants something more than an “empty title,” its invocation does not give the president free rein. footnote20_uGNqISVVmECq 20 Youngstown , 343 U.S. at 641 (Jackson, J., concurring). In domestic affairs, both generally and with respect to the role of the military, the Constitution envisions Congress as the branch in control. footnote21_efUzODCC1u3t 21 Vladeck, “Calling Forth Clause and the Domestic Commander-in-Chief,” 1106.

To be sure, the president’s powers under the Commander in Chief Clause do not cease to exist inside the territorial United States. If a foreign enemy launches a sudden attack inside the United States, it is generally understood that the president may act to repel that attack, even if Congress has not given its blessing. footnote22_bP2E5vhGpdWF 22 Prize Cases, 67 U.S. (2 Black) 635, 669 (1862). And if Congress has authorized military action, the president controls the actual conduct of military operations, even if that fighting is taking place within the country’s borders (for instance, during a foreign invasion or civil war). But the former power is quite limited, and the latter relies on prior congressional authorization.

Because the Constitution does not give the president “conclusive and preclusive” authority over the domestic use of the military — and, on the contrary, explicitly vests power in the legislative branch — the president cannot act against Congress’s wishes in this area. Accordingly, a unilateral declaration of martial law by the president today — on the southern border or elsewhere — would not survive a legal challenge under Youngstown .

It bears emphasizing that this conclusion is compelled partly by the Constitution and partly by federal law. It is possible that, in the absence of the Posse Comitatus Act and other laws regulating domestic military activity, the president could rely on some independent executive power to declare martial law. But that scenario is hypothetical and the likely legal outcome is uncertain. The reality is that the domestic role of the U.S. military is subject to pervasive statutory regulation. This has altered what might otherwise be the scope of the president’s constitutional authority and precludes a unilateral presidential declaration of martial law. footnote23_g5x4atouFIh4 23 In Justice Jackson’s words, “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Youngstown , 343 U.S. at 635 (Jackson, J., concurring); and Powell, President as Commander in Chief , 99–100.

In the imagined scenario described earlier, the president set up military tribunals to try violators of federal immigration law. The Posse Comitatus Act, however, only applies to military participation in law enforcement . When it comes to military involvement in judicial functions, the analysis changes, and the law is characterized by profound uncertainty. While the Calling Forth Clause expressly contemplates the use of military forces to execute the law, no provision of the Constitution authorizes the military to perform the functions assigned to the judicial branch under Article III. Nonetheless, the Supreme Court’s 1866 decision in Ex parte Milligan suggests that the president can, in certain circumstances, impose martial law in an area and replace the civilian courts there with military tribunals. footnote24_bA0sQyc62WIC 24 Milligan , 71 U.S. at 127.

The Court’s reasoning in Milligan has some striking inconsistencies and must be interpreted cautiously. In one part of the opinion, the Court firmly asserts that emergency conditions can never justify exceeding the bounds of the Constitution. footnote25_pNDclcESJrd9 25 Milligan , 71 U.S. at 120–21. Elsewhere, however, the Court says that “necessity” might warrant declaring martial law and using military tribunals to try civilians if regular courts are unavailable. footnote26_zCSDwzfjqrWq 26 Milligan , 71 U.S. at 127. Importantly, this latter part of the Court’s opinion is dicta, rather than a necessary and binding part of the Court’s holding. That alone gives reason to doubt whether there is indeed a “necessity” loophole that allows the military to put civilians on trial. But the larger issue is that a necessity exception to the Constitution is impossible: it is a fundamental principle of U.S. constitutional law, reaffirmed countless times both before and after the Milligan ruling, that the government is always constrained by the Constitution, no matter the circumstances. footnote27_q6MKNKJ2iuN1 27 Youngstown , 343 U.S. 579; Carter v. Carter Coal Company, 298 U.S. 238 (1936); Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861); McCulloch v. Maryland, 17 U.S. 316 (1836); and Marbury v. Madison, 1 Cranch 137 (1803).

In any event, even if the necessity-based exception articulated in Milligan were considered to be authoritative, it would be extremely narrow. It would allow the military to supplant civilian courts only during an actual war, on “the theatre of active military operations,” where the chaos and fighting are so severe that the regular courts have been forced to close and are unable to operate. footnote28_oOg8zqmQC3Kv 28 Milligan , 71 U.S. at 127.

The possibility of using martial law to replace civilian courts with military tribunals should not be confused with the rule established by Ex parte Quirin in 1942. footnote29_wd7eevkZUGhE 29 Ex parte Quirin, 317 U.S. 1 (1942). Quirin and a handful of more recent Supreme Court decisions related to the U.S. military’s detention facility at Guantanamo Bay allow U.S. citizens not serving in the military to be tried by military commission — a particular type of tribunal used by the U.S. military — if they are “enemy combatants.” footnote30_zfJOiX9yuehk 30 Quirin , 317 U.S. at 46; Hamdi , 542 U.S. 507; Hamdan , 548 U.S. 557; and Boumediene , 553 U.S. 723. These individuals, the Court has held, are subject to the international law of war. As a result, Congress may authorize their trial by military commission even if civilian courts are open and functioning, pursuant to its authority to “define and punish . . . Offences against the Law of Nations.” footnote31_g1m4jC60MmlC 31 U.S. Const. art. I, § 8 cl. 10. These decisions are not about martial law. They demarcate the line between military and civilian jurisdiction, rather than allowing the military to exercise jurisdiction in an area ordinarily reserved for civilian courts.

Part III: What has Congress Said About Martial Law?

No existing federal statute explicitly authorizes the president to declare martial law. footnote1_iWqLixZjbW7i 1 Two federal statutes (48 U.S.C. §§ 1422, 1591) authorize the territorial governors of Guam and the U.S. Virgin Islands to declare martial law under certain circumstances. Neither statute grants any power to the president. However, there are a number of statutory exceptions to the Posse Comitatus Act that allow the president to deploy the military domestically. footnote2_ob1QQHFHoijk 2 Elsea, Posse Comitatus Act , 31–49. The most important of these is the Insurrection Act. footnote3_q8eNcNqP2n4B 3 10 U.S.C. §§ 251–55. Rather than a single package of legislation, the Insurrection Act consists of a series of statutes that were enacted between 1792 and 1871, with a few amendments in the 20th century. footnote4_ihh7RIIhplYo 4 These statutes are the 1792 Calling Forth Act, the 1795 Militia Act, the 1807 Insurrection Act, the 1861 Suppression of the Rebellion Act, and the 1871 Ku Klux Klan Act. The 1792 act and parts of the 1871 act contained sunset provisions, and are no longer in force, but their text and legislative history remain instructive. Vladeck, “Emergency Power and the Militia Acts,” 152n9.

Three of the Insurrection Act’s provisions grant the president power to deploy troops domestically. The first two, Sections 251 and 252, are relatively straightforward and mirror the language of the Calling Forth Clause. Under Section 251, if there is an insurrection in a state, and the state’s legislature (or governor, if the legislature is unavailable) requests federal aid, then the president may deploy the National Guard or the regular armed forces to suppress the insurrection. footnote5_yAi9dyEuowjQ 5 10 U.S.C. § 251 (“Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.”). Section 252 allows the president to deploy troops without a request from the affected state — indeed, even against the state’s wishes — in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.” footnote6_b3BeQyndNghQ 6 10 U.S.C. § 252 (“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”).

Nothing in the plain language of Sections 251 and 252 indicates that they authorize martial law. The clause in Section 251 that empowers the military to “suppress an insurrection” does not suggest that federal troops may take over the role of the civilian government in the process. Rather, it contemplates that the military may assist overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group.

Section 252 suggests a more expansive power: it allows the military to enforce federal law, not just to suppress an insurrection. Nonetheless, it still does not imply that the military may push aside the civilian authorities. In its 1946 decision in Duncan , the Supreme Court made clear that when a statute authorizes the military to encroach on the affairs of civilian government, the Court will interpret it extremely narrowly. If the statute does not specifically say that Congress meant to disrupt the “traditional boundaries” between civilian and military power, the Court will not imply that intent on Congress’s behalf. footnote7_rHqAXXmD8PvW 7 Duncan , 327 U.S. at 319–24. Because Section 252 does not expressly authorize the displacement of civilian authorities, it should not be read as license to turn the normal relationship between civilian and military power on its head. Instead, it should be understood merely as authorization for the military to assist civilian government officials when they are overwhelmed by forces attempting to obstruct law enforcement and judicial proceedings.

Section 253 is the only substantive provision of the Insurrection Act that might, on its face, be read to authorize a limited form of martial law. Among other things, it allows the president to use the National Guard or the active duty armed forces to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state if it “so hinders the execution of [state or federal] laws” that “any part or class of [the state’s] people” is deprived of a constitutional right and “the constituted authorities” of the state “are unable, fail, or refuse to protect” that right. footnote8_jB0KTvIAEtZ6 8 The full text of 10 U.S.C. § 253 provides the following: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. As in Section 252, the desires of the state are irrelevant.

By its express terms, Section 253 contemplates a situation in which, rather than needing help from the military to enforce the laws, the civilian authorities are just not enforcing them. As a result, the president may send in troops to suppress whatever insurrection or other violence is causing a portion of the people in that state to be deprived of a constitutional right. Thus, if troops are deployed under Section 253, they will, to some extent at least, take over the role of the civilian government. However, the legislative history of Section 253 indicates that it is best understood as allowing the military to supplant only the local police, and to do so in service of laws duly enacted by civilian authorities. footnote9_r023ZJyReD9E 9 What is now 10 U.S.C. § 253 originated as Section 3 of the 1871 Ku Klux Klan Act. Civil Rights (Ku Klux Klan) Act of 1871, ch. 22, 17 Stat. 13. The act’s legislative history indicates that Congress meant for section 3 to authorize the military to take over the role of the local police, but nothing more. Cong. Globe, 42d Cong., 1st Sess. at 567–68 (1871) (statement of Sen. Edmunds). Moreover, the House version of Section 4 of the act explicitly authorized the president to declare martial law, but this language was removed before the bill was sent to the Senate. See Cong. Globe, 42d Cong., 1st Sess. at 317 (1871) (statement of Rep. Shellabarger); and Cong. Globe, 42d Cong., 1st Sess. at 478 (1871) (statement of Rep. Shellabarger). The fact that Congress considered and removed the martial law language demonstrates that it was aware of martial law and either chose not to authorize it or determined that it lacked the power to do so. This is so narrow that calling it even a “limited form” of martial law would probably be an exaggeration. Indeed, the Department of Defense’s own regulations emphasize the importance of maintaining the “primacy of civilian authority” when troops are deployed in support of law enforcement operations. footnote10_b6G1GZAT2xG1 10 U.S. Department of Defense, “Defense Support of Civilian Law Enforcement Agencies,” Instruction no. 3025.21, last updated February 8, 2019, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302521p.pdf; and Ryan Goodman and Steve Vladeck, “The Untold Power of Bill Barr to Direct US Military Forces in Case of ‘Civil Unrest,’” Just Security , June 9, 2020, https://www.justsecurity.org/70672/the-untold-power-of-bill-barr-to-direct-us-military-forces-in-case-of-civil-unrest/.

The Insurrection Act is an exception to the Posse Comitatus Act, but there are also some circumstances in which the latter law simply does not apply. As part V of this report explains, the Posse Comitatus Act does not affect the ability of states to call up their National Guard forces and deploy them within their own borders. In that situation, National Guard troops are operating in State Active Duty status. The Posse Comitatus Act also does not apply when National Guard forces are activated in what is known as Title 32 status, in which the troops remain subject to state command and control, but are used for federal missions and are typically paid for by the federal government. footnote11_qQmvkgaHXHAi 11 Elsea, Posse Comitatus Act , 61–62n419; Steve Vladeck, “Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation,” LawFare , June 9, 2020, https://www.lawfareblog.com/why-were-out-state-national-guard-units-washington-dc-justice-departments-troubling-explanation; and Jennifer K. Elsea, The President’s Authority to Use the National Guard or the Armed Forces to Secure the Border , CRS report no. LSB10121 (Washington, DC: Congressional Research Service, 2018), https://fas.org/sgp/crs/natsec/LSB10121.pdf.

On its face, Title 32 appears to authorize a fairly limited set of activities relating to drug interdiction and counter-drug activities, homeland security protection, and training exercises. In early June 2020, however, U.S. Attorney General William Barr put forward a shockingly broad interpretation of the section of Title 32 that addresses “required training and field exercises” for National Guard forces. Under this section, training may include “operations or missions undertaken . . . at the request of the President or Secretary of Defense.” footnote12_nb73c4A73Z1G 12 32 U.S.C. § 502(f)(2)(A). In a formal letter explaining the deployment of several states’ National Guard forces to Washington, DC, during protests that followed the police killing of George Floyd in May 2020, Barr asserted that this language allows the president to use the National Guard at any time and for any reason — a reading that effectively creates a gaping loophole in the Posse Comitatus Act. footnote13_qIi5NriBG4O3 13 Kerri Kupec DOJ (@KerriKupecDOJ), “Letter from Attorney General William P. Barr to D.C. Mayor Muriel Bowser on the Trump Administration’s restoration of law and order to the District,” Twitter, June 9, 2020, 3:45 p.m., https://twitter.com/kerrikupecdoj/status/1270487263324049410.

The attorney general’s interpretation is suspect for a number of reasons, but even if it were correct, it would not authorize martial law. footnote14_enDlySaa0KUl 14 Vladeck, “Why Were Out-of-State National Guard Units in Washington, D.C.?” As with the Insurrection Act, there is no clear statement in Title 32 to suggest that Congress intended to reverse the usual constitutional order in which the military remains subordinate to civilian authority. Under the Supreme Court’s reasoning in Duncan , the language cited by Barr could at most be read to authorize the use of the military to assist civilian law enforcement authorities. footnote15_dutPN1Dj9SjV 15 Duncan , 327 U.S. at 319–24.

In short, no existing statute authorizes the president to declare martial law. Congress has given the president considerable authority, however, to use troops domestically to assist in civilian law enforcement activities. Deploying troops under the Insurrection Act might not raise all of the same concerns that would be associated with a declaration of martial law, but there is reason to worry whenever a president uses the military as a domestic police force — particularly without the consent of the state to which the armed forces are sent.

To start, using the military to enforce the law flies in the face of American tradition. The Founders were deeply suspicious of the very idea of a national standing army, believing that it could be used as an instrument of oppression and could pose a threat to the autonomy of the individual states. footnote16_xO7M9HJ6V9SO 16 Vladeck, “Emergency Power and the Militia Acts,” 156. Many of the protections enshrined in the Constitution’s Bill of Rights reflect the hard lessons the Founders learned at the hands of British soldiers about the dangers of allowing the military to act as a domestic police force. They worried that a president equipped with a ready and loyal army would be able to subvert democracy and impose his will on the states and the people.

Moreover, even with the best of intentions, asking the military to stand in for the police can yield disastrous results. Soldiers are trained to fight and destroy an enemy, one that generally lacks constitutional rights. As such, they are poorly suited to performing the duties of police. Forcing them into that role can increase the risk of violence. footnote17_qKgOFhgASZtB 17 For examples, one need only look to the Kent State massacre in 1970 or incidents during the military deployment to Los Angeles during the 1992 riots. Howard Means, 67 Shots: Kent State and the End of American Innocence (Boston: Da Capo Press, 2016); and Jim Newton, “Did Bill Barr Learn the Wrong Lesson from the L.A. Riots?,” Politico , June 9, 2020, https://www.politico.com/news/magazine/2020/06/09/william-barr-los-angeles-riots-307446. In the words of a Minnesota National Guard member facing deployment in response to the protests that followed the murder of George Floyd: “We’re a combat unit not trained for riot control or safely handling civilians in this context. Soldiers up and down the ranks are scared about hurting someone.” footnote18_rxR5WB0Sg5yY 18 Ken Klippenstein, “Exclusive: The Military Is Monitoring Protests in 7 States,” Nation , May 30, 2020, https://www.thenation.com/article/society/national-guard-defense-department-protests/.

Part IV: Martial Law is Constrained by the Constitution and Subject to Judicial Review

Even if Congress were to authorize martial law, and the Supreme Court were to uphold its power to do so, the Constitution would still apply. Congress, the president, and the Supreme Court are bound at all times by the Constitution and possess only the powers it confers. None of those powers allows the government to suspend or violate constitutional rights by martial law or by any other means. On the contrary, as the Supreme Court explained in Milligan , “the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” footnote1_qmdAHYrWcSQY 1 Milligan , 71 U.S. at 120–21; and Boumediene , 553 U.S. at 798 (“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”).

The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left “forever inviolable.” footnote2_aRqVqpnXPjFO 2 Milligan , 71 U.S. at 126. There is no constitutional procedure for suspending the First Amendment’s protection of free expression, the Fourth Amendment’s prohibition on “unreasonable searches and seizures,” the Fifth and Sixth Amendment rights to trial by jury and the assistance of a lawyer, or the Fifth Amendment right not to “be deprived of life, liberty, or property, without due process of law.”

For the most part, however, the rights conferred by the Constitution are not absolute. When courts decide whether those rights have been violated, they consider the circumstances —including not only the impact on the individual whose rights are affected, but also the interests of the government — and there is often a balancing involved. footnote3_nKBOQjsPSRkg 3 United States v. Knights, 534 U.S. 112, 118–19 (2001) (“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed to promote legitimate governmental interests.”); Sable Communications v. FCC, 492 U.S. 115, 126 (1989) (“The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”); and Moyer , 212 U.S. at 84 (“[W]hat is due process of law depends on circumstances.”). In the kind of emergency that would justify the declaration of martial law, the government might not have to provide the same comprehensive procedures required in ordinary times before detaining someone or confiscating property. But the right to due process remains, along with all other constitutional rights, and the federal courts have the power to decide whether they have been violated. footnote4_vFxm7VHHbbLG 4 Boumediene , 553 U.S. 723; Hamdan , 548 U.S. 557; and Hamdi , 542 U.S. 507.

The Supreme Court, without actually endorsing the federal government’s power to declare martial law, has established that such declarations are subject to judicial review. At a minimum, in a state or territory that the federal government has placed under martial law, individuals who have been detained by the military may ask a federal court to order their release by petitioning for the writ of habeas corpus. footnote5_nqcHS0S0JZyu 5 Duncan , 327 U.S. at 307, 324; and Milligan , 71 U.S. at 130–31. A court that considers an individual’s petition can decide whether the declaration of martial law was constitutionally permissible. footnote6_d1UgYjt1dGjr 6 Milligan , 71 U.S. at 126–27. The reviewing court can also decide whether the military’s particular actions — such as the decision to arrest and detain the person petitioning for habeas corpus — have violated the Constitution or exceeded the powers granted by the statute (if any) that authorized martial law. footnote7_e8deih7VlPhn 7 Duncan , 327 U.S. at 324; and Milligan , 71 U.S. at 130–31.

When determining whether the military has exceeded its statutory authority, courts will construe that authority narrowly. This rule derives from the Supreme Court’s decision in Duncan . Usually, the term martial law refers to the military taking the place of civilian authorities. But in Duncan , the Court held that simply putting the words “martial law” in a statute is not sufficient to authorize such extreme measures. The Court explained that martial law has never been precisely or conclusively defined. It emphasized the importance of the “traditional boundaries” between military and civilian power in the United States, and identified three basic principles that make up those boundaries: first, that the military must remain subordinate to civilian control and the law; second, that it may only assist civilian authorities when it is deployed domestically; and, third, that it may neither interfere with nor usurp the roles of the legislature or the judiciary. footnote8_zkRNoOwUBK3A 8 Duncan , 327 U.S. at 319–24.

The Court concluded that, because these principles are deeply engrained in U.S. law and institutions, any law that purports to abridge them must be clear and specific about how they may be abridged. For instance, a statute might expressly authorize the use of military tribunals to try civilians in areas where an invasion has resulted in the closure of the courts and the government has declared martial law. If that specificity is lacking — if the statute or its legislative history do not define what Congress meant by martial law — then courts will assume that Congress intended only to authorize the military to “act vigorously for the maintenance of an orderly civil government and for the defense of the [area] against actual or threatened rebellion or invasion.” footnote9_epo2s3E5F7yj 9 Duncan , 327 U.S. at 324.

Part V: What About the States?

The law governing states’ use of martial law is comparatively simple. The Supreme Court has expressly held that individual states have the power to declare martial law. footnote1_ow792tKbIdOS 1 Luther , 48 U.S. at 45–46. The Posse Comitatus Act does not apply to the states and thus does not affect their ability to use their military forces for domestic law enforcement. footnote2_hELShrNegH4a 2 Elsea, Posse Comitatus Act , 61–62n419. Instead, a state declaration of martial law is valid simply if it is authorized by the constitution or laws of the state. footnote3_zWmNw4G6pDNj 3 Sterling , 287 U.S. at 403–4; Moyer , 212 U.S. at 84–85; and Luther , 48 U.S. at 45–46.

But this does not mean that states can do whatever they want. The Supremacy Clause establishes that the U.S. Constitution, federal laws, and treaties constitute “the supreme Law of the Land,” meaning that states have no authority to override them. footnote4_ztimu2DxLH47 4 U.S. Const. art. VI, § 2. The Supreme Court has emphasized that even under martial law, state officials are bound both by the U.S. Constitution and by valid federal laws. footnote5_gs1XRQ0lVvuf 5 Sterling , 287 U.S. at 398 (explaining that declaring martial law provides no escape “from the paramount authority of the Federal Constitution”). If individuals wish to challenge a state declaration of martial law, they may seek injunctive relief in federal court — or, if they have been detained, they may petition for the writ of habeas corpus. footnote6_tDcO6mG7H79F 6 Sterling , 287 U.S. at 403–4 (enjoining the state from using martial law, military force, or any other means to enforce an invalidating oil production regulation); and Moyer , 212 U.S. 78 (ruling on a habeas petition where petitioner was detained by military forces acting under martial law). The reviewing court will show great deference to a state governor’s determination that the situation required a declaration of martial law. footnote7_v6kFGQze46BN 7 Moyer , 212 U.S. at 83–85. Justice Holmes derived this rule from two earlier Supreme Court decisions: Luther , 48 U.S. 1, and Martin v. Mott, 25 U.S. 19 (1827). See also Sterling , 287 U.S. at 397–401. However, the court will examine whether any military actions taken under that declaration have run afoul of the Constitution or federal law. footnote8_bGmkRApZa0xn 8 Sterling , 287 U.S. at 400–401 (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”).

On that question, the Supreme Court ruled in Moyer v. Peabody and Sterling v. Constantin that actions taken under state martial law are valid if they are “conceived in good faith, in the face of the emergency, and [are] directly related to the quelling of the disorder or the prevention of its continuance.” footnote9_xauv0JJewc8r 9 Sterling , 287 U.S. at 399–400; and Moyer , 212 U.S. at 85. This “good faith/direct relationship” standard could be read to imply that state officials may take actions under martial law that would in other circumstances violate the Constitution. In other words, it suggests that in an emergency, good faith and a direct relationship between means and ends are enough to satisfy the Due Process Clause of the Fourteenth Amendment.

However, the “good faith/direct relationship” standard from Sterling and Moyer is more appropriately read as a floor than as a ceiling. Both cases certainly suggest that a state’s actions would be invalid if they were made in bad faith or were not directly related to quelling the disturbance that precipitated them. But it is not clear that good faith and a direct relationship alone would be enough to satisfy due process or other constitutional requirements today. Moyer and Sterling are very old cases. Decided in 1909 and 1932, respectively, they predate virtually all of the Supreme Court’s modern due process and civil rights case law. footnote10_oLlWqFHwEbxW 10 Skinner v. Oklahoma, 316 U.S. 535 (1942); Cooper v. Aaron, 358 U.S. 1 (1958); Mapp , 367 U.S. 643; Massiah , 377 U.S. 201; Griswold , 381 U.S. 479; Miranda , 384 U.S. 436; Loving v. Virginia, 388 U.S. 1 (1967); Department of Agriculture v. Moreno, 413 U.S. 528 (1973); Mathews v. Eldridge, 424 U.S. 319 (1976); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Romer v. Evans, 517 U.S. 620 (1996); Hamdi , 542 U.S. 507; Hamdan , 548 U.S. 557; and Boumediene , 553 U.S. 723. Under those precedents, it is likely that the Court would apply a more demanding standard of review.

The law governing martial law is complicated and unsettled, but a few principles can be found in the Supreme Court’s rulings on this topic and on the limits of executive power more generally. The Constitution gives Congress authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. Because that legislation does not include authorization for the president to impose martial law, the president has no power to do so. Even if Congress were to provide authorization, the Supreme Court has not conclusively decided that the federal government is constitutionally empowered to declare martial law. But it is clear that such a power, if it existed, would have to be exercised within the bounds of the Constitution, and the military’s actions would be subject to judicial review.

The state martial law power is more clearly established, but there are significant limits. States may declare martial law whenever it is authorized by state law, and federal courts are likely to defer to a state governor’s decision that doing so was necessary. However, the Constitution and valid federal laws will still constrain states’ conduct under the declaration, and judicial review will be available in federal court.

The exact scope and limits of martial law will thus remain dangerously unclear until Congress and state legislatures enact new laws that better define them.

Beyond this, the Supreme Court precedent is too old, sparse, and inconsistent to provide any certainty around martial law. Indeed, in the absence of legislation specifically addressing martial law, even the above principles are subject to competing interpretations and would likely be disputed by executive officials seeking to use military forces more aggressively. The exact scope and limits of martial law will thus remain dangerously unclear until Congress and state legislatures enact new laws that better define them.

Moreover, even without the power to declare martial law, the president still has extensive authority to deploy the military domestically to perform law enforcement functions. The Insurrection Act — and possibly Title 32 as well — leave it almost entirely up to the president to decide when and where to use U.S. armed forces at home against Americans. To some observers, a deployment of troops under the Insurrection Act might look and feel very much like martial law. Given the degree of confusion over the term, some within the media or the government itself might even call it martial law. Although that label would be inaccurate and the military’s authority would be substantially less extensive than under martial law, the fact remains that any use of U.S. armed forces as a domestic police force represents a departure from American tradition and carries inherent risks. Thus, as with martial law, Congress urgently needs to pass legislation clarifying and limiting the president’s powers under the Insurrection Act and Title 32.

Acknowledgments

The author would like to thank the Brennan Center’s Elizabeth Goitein for her invaluable guidance, comments, and suggestions, as well as Mireya Navarro, Tim Lau, Stephanie Sykes, Jeanne Park, Matthew Harwood, Ryan Witcombe, and Justin Charles for their outstanding communications support. Sahil Singhvi, Victoria Ochoa, Rachel Lesser, Aleena Nasir, Amelia Shapiro, and Sheel Patel deserve special thanks for their diligent research efforts, which made this report possible.

The author would also like to thank professors Steve Vladeck, Bill Banks, and Jeff Powell. The knowledge and insight they contributed through conversations and correspondence greatly benefited the report.

The Brennan Center gratefully acknowledges The Bauman Foundation, CS Fund/Warsh-Mott Legacy, Democracy Fund, The Endeavor Foundation, Inc., The William and Flora Hewlett Foundation, and Open Society Foundations for their generous support of our work.

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Essay on Martial Law

Students are often asked to write an essay on Martial Law in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Martial Law

What is martial law.

Martial Law is when the military takes control of the normal administration of a place. This usually happens during emergencies, like wars or natural disasters. It means the army can make rules, and people must follow them or face strict punishment.

Why is Martial Law Declared?

Leaders declare Martial Law to maintain peace and order when things get very chaotic. They believe the military can handle the situation better than the usual police or government bodies during such times.

Effects on People

Under Martial Law, people’s freedom can be limited. They may have to follow curfews, and sometimes they cannot say what they think or gather in groups.

Ending Martial Law

Martial Law does not last forever. It is supposed to end when the emergency is over, and things are back to normal. Then, the regular government takes back control, and laws are as they were before.

250 Words Essay on Martial Law

Leaders might declare martial law to keep peace and order when things get really bad. For example, if there’s a huge riot or the country is being attacked by another country, the government might feel it needs the strict control of the military to keep everyone safe.

Life Under Martial Law

When martial law is in place, life can change a lot for people. They might have a curfew, which means they have to be home by a certain time. They might not be able to gather in big groups or say what they think about the government. Sometimes, the military might also take over things like newspapers and TV stations.

Martial law doesn’t last forever. It’s supposed to be a temporary solution until the country can return to normal. Eventually, the government decides to end martial law, and the usual rules come back into place. People hope that by then, the country is safer and more stable.

500 Words Essay on Martial Law

Martial law is a strict type of rule used by a government in times of great trouble or during a war. When a country declares martial law, it means that the normal laws and rights people have are put on hold. Instead, the military takes control and has the power to make new rules and enforce them very strictly.

Governments may declare martial law for various reasons. Sometimes, it is because of a natural disaster like a huge earthquake. Other times, it might be because of a war or when people in the country are fighting against each other and there is a lot of violence. The main idea is to return peace and order when things are very bad and regular police cannot handle the situation.

What Happens Under Martial Law?

Under martial law, the military has a lot of power. Soldiers can be seen patrolling the streets. They can make arrests and run courts to judge crimes. Regular things like going out at night or even speaking against the government can be stopped. The military can also take over important places like airports or bridges to keep control.

Effects on People’s Lives

When martial law is in place, people’s lives can change a lot. They might have a curfew, which means they have to be home by a certain time in the evening and cannot go out until morning. They might need special permission to travel or have limits on how many people can meet together. Sometimes, the internet, newspapers, and TV are controlled or stopped so that only the government’s side of the story is heard.

Examples from History

In history, there have been many times when martial law was used. For example, during World War II, some countries used martial law to keep things in order. In the United States, martial law has been used in certain places during big riots or after a natural disaster. Each time, the goal was to make sure people were safe and to fix the problems that caused the trouble.

In conclusion, martial law is a serious step a government can take to deal with big problems. It gives the military the power to keep peace and order when regular laws are not enough. While it can help in dangerous times, it also changes how people live and can limit their freedom. It is important for martial law to be used carefully and only for as long as it is absolutely necessary.

That’s it! I hope the essay helped you.

Happy studying!