Marshall Law For Dummies

Everything I know about Marshall Law in America couldn’t cover a 50-word article. So, since many here seem to think it is a good idea, I did some research.

What is Martial Law?

“Martial law” has no established definition. But, there are reasons for when it can be imposed. (See next question.)  In general terms, these are the “features”;

— used in an emergency (see next question)

— the military replaces civilian authority

— local police no longer enforce laws … soldiers do

— military officers, not elected officials, make policy decisions

— military tribunals replace civilian courts.

When is it usually declared?

Mostly in times of labor disputes (29 times), civil unrest (11), insurrection (7),  natural disaster (4), and war or invasion (2), and 15 “other” times (see link in next question), including three separate times over “a nonviolent dispute between the state government and oil producers over oil production limits”. The link in the next question has a brief synopsis of every instance.

Is it rare in the United States?

This site  (here)   claims Martial law has been declared at least 68 times. Doesn’t seem rare to me.

What happens when it is declared?

At a minimum, certain civil liberties almost certainly be suspended for an indefinite period of time, such as, but not limited to;  the right to be free from unreasonable searches and seizures, freedom of association, freedom of movement, and the writ of habeas corpus (the right to a trial before imprisonment).

More realistically, you will lose many rights.  Life as you know it will be no more.  Read this below (link is in the “Who can declare it?”question.).

“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.

But nothing about Hawaii was normal in 1942. It had been under martial law since the Japanese attack on Pearl Harbor in December 1941. 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.

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.”

I think the moral of this story is be careful what you wish for.

Who can declare it?

Short answer; the President or Congress.  A qualified answer; there is strong disagreement regarding the President.  Some insist he can NOT declare Martial Law, while others, albeit a much smaller group,  are equally vociferous that he can.  Going over that debate is not within the scope of this short article.

[For more info, see this research report  titled;  “Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It”  (here).  It’s by the Brennan Center For Justice.  That sounds scary and swampy.  They claim to be bi-partisan.  Yeah, and I claim to have a twelve inch python in my underwear. It’s along article, and actually interesting, imho.  If you read it you’ll know more about Martial Law than 99% of your friends and family.  Nevertheless, enter and read with caution.]

Can state officials declare Martial Law?

Yes. However, their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.

Will the Court and the Constitution protect the people from Martial Law abuses?

Not necessarily. Even Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was Constitutionally questionable, but defended it as necessary to preserve the Union.

Does Martial Law have limits?

Yes, via the Posse Comitatus Act.

What is the Posse Comitatus Act?

A law passed in 1878.  Specifically, it prevented federal troops from supervising Confederate state elections during Reconstruction. The main thing is that prevents troops from enforcing domestic law .. even to the degree of forbidding federal troops to disperse crowds.The act originally applied only to the Army, but has been amended to include all the other service branches.

Is there an exception to the Posse Comitatus Act?

Yes. It is called the Insurrection Act.

What is the Insurrection Act?

A law passed in 1807.  It gives the President authority to deploy active federal troops or the National Guard under certain circumstances to suppress civil disorder, insurrection, and rebellion. Thomas Jefferson signed it into law to foil Aaron Burr’s attempt to raise an army in the Louisiana Territory. (Here.)   Eisenhower used it to send the 101st Airborne Division to enforce the desegregation of public schools in Arkansas.

Can I be more specific about the “certain circumstances” mentioned above?

Sure.  Specifically, the text states the act can be invoked when; — “a rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings,”

Can the Insurrection Act be used as a back door to declaring Martial Law?

Yes.  It is what Trump was implying when he said; — “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”  The mechanism is rather straightforward.

The President would invoke the Insurrection Act thusly according to the “2006 Congressional Research Service” report.  The President, “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops.”

Unlike Martial Law, the Insurrection Act exists to enforce the law, not replace it. But, it is codified. Martial Law is NOT codified.  Once the military is legally deployed via the Insurrection Act, there is nothing to prevent the President from declaring martial law. Even though it is not sanctioned, he can just do it.

Will the military support Trump if he declares Martial Law?

Who knows?  Some say the Big Boy Brass Balls club — who are all swamp creatures themselves — will not. But, the troops will.  (What? There are no Democrat troops?)

Nevertheless, it does not appear the BBBB will support Trumpian Marshall Law.

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

— Army Gen. Mark Milley, chairman of the Joint Chiefs of Staff, said; — “We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else. We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.”

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BONUS SECTION

This entire section is copied and pasted from the aforementioned Brennan Center For Justice.  (here).  It discusses the very first time Marshall Law was implemented in America. I’m tell you, again, that report is a very good read.

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.

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. 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.

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.”

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. 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.

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.” 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.

THE END

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Author: Stucky

I'm right, you're wrong. Deal with it. View all posts by Stucky