Martial Law and National Emergency

CRS Report for Congress
Martial Law and National Emergency
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Crises in public order, both real and potential, often evoke comments concerning
a resort to martial law. While some ambiguity exists regarding the conditions of a
martial law setting, such a prospect, nonetheless, is disturbing to many Americans who
cherish their liberties, expect civilian law enforcement to prevail, and support civilian
control of military authority. An overview of the concept of, exercise of, and authority
underlying martial law is provided in this report, which will be updated as events
Occasionally, when some national emergency or crisis threatens public order in the
United States, the comment is made that the President may ultimately resort to imposing
martial law in order to preserve discipline and good behavior. Such was the case when
it was thought that year 2000 (Y2K) technology problems might result in situations
threatening life, property, or the general welfare in American society. The almost flawless
transition to the year 2000, of course, rendered such an action unnecessary. More
recently, at least one newspaper erroneously reported that the September 14, 2001,
declaration of a national emergency by President George W. Bush in response to terrorist
attacks in New York City and Washington, DC, “activated some 500 dormant legal
provisions, including those allowing him to impose censorship and martial law.”1 In
accordance with the requirements of the National Emergencies Act, the President’s
declaration actually activated nine selective provisions of statutory law, identified in his2
proclamation, pertaining to military and Coast Guard personnel.
Such comments, nonetheless, suggest a consideration of what martial law constitutes,
as well as when and how it might be invoked. According to one definition, martial law
“exists when military authorities carry on government or exercise various degrees of
control over civilians or civilian authorities in domestic territory.” More significantly, it
“may exist either in time of war or when civil authority has ceased to function or has

1 See Frank J. Murray, “Wartime Presidential Powers Supersede Liberties,” Washington Times,
Sept. 18, 2001, pp. A1, A12.
2 See Proclamation 7463, Federal Register, vol. 66, Sept. 18, 2001, pp. 48197-48199; the
provisions of the National Emergencies Act may be found at 50 U.S.C. 1601-1651.
Congressional Research Service ˜ The Library of Congress

become ineffective.”3 Constitutional scholar Edward S. Corwin agrees with this
understanding, but also offers important qualifications.
A regime of martial law may be compendiously, if not altogether accurately, defined
as one in which the ordinary law, as administered by the ordinary courts, is
superseded for the time being by the will of a military commander. It follows that,
when martial law is instituted under national authority, it rests ultimately on the will
of the President of the United States in his capacity as Commander-in-Chief. It should
be added at once, nevertheless, that the subject is one in which the record of actual
practice fails often to support the niceties of theory. Thus, the employment of the
military arm in the enforcement of the civil law does not invariably, or even usually,
involve martial law in the strict sense, for ... soldiers are often placed simply at the
disposal and direction of the civil authorities as a kind of supplementary police, or
posse comitatus; on the other hand, by reason of the discretion that the civil
authorities themselves are apt to vest in the military in any emergency requiring its
assistance, the line between such an employment of the military and a regime of4
martial law is frequently any but a hard and fast one.
The Record of Practice
Probably utilized by the federal government for the first time in 1814 when
proclaimed by the victorious General Andrew Jackson, martial law was not part of the
experience of a great many Americans in the period prior to the Civil War, and, therefore,
its potentially arbitrary and authoritarian nature was not especially fearsome to the
populace. In this regard, an observation by historian James G. Randall might be recalled.
That martial law was not always considered oppressive is shown by the fact that
citizens sometimes petitioned for it. Some Philadelphians, for instance, requested the
President to declare martial law in their city at the time of [Confederate General
Robert E.] Lee’s invasion to enable them to put the city in a proper state of defense.
Nor should we suppose that the existence of martial law necessarily involved a
condition of extensive or continuous military restraint. Beginning with September,
1863, the District of Columbia was subjected to martial law, and this state of affairs
continued throughout the war, but it should not be supposed that residents of the
capital city were usually conscious of serious curtailment of their liberties. The
condition of martial law was here used as a means of military security. That martial
law should be declared in areas of actual military operations was, of course, not5
As territory of the Confederacy was overtaken by Union forces, it was governed
under military authority and martial law. This state of affairs in the South, with regard
to martial law, continued into the Reconstruction period. “Since the Civil War era,” notes
Joseph E. Kallenbach, “there have been no proclamations of martial law by Presidents
directly on behalf of the national government, although President Hayes very seriously

3 Henry Campbell Black, Black’s Law Dictionary, 6th edition (Saint Paul, MN: West Publishing,

1990), p. 974.

4 Edward S. Corwin, The President: Office and Powers, 1787-1957, 4th revised edition (New
York: New York University Press, 1957), p. 139.
5 James G. Randall, Constitutional Problems Under Lincoln, revised edition (Urbana, IL:
University of Illinois Press, 1964), p. 170.

considered issuing such a proclamation during the railroad strike crisis of 1887. There
have been conditions of limited martial law established with the explicit or implicit
approval of the President by officers in the field, however,” he adds.6
These occasional invocations of martial law during the post-Civil War period
occurred most often in labor disputes, but, as one chronicler recounts, other disturbances
of the public order were involved as well.
Qualified martial law was twice declared ... by federal military officers in the period
after the [first] World War when presidential control of troop activities was so greatly
relaxed. According to the report of the Secretary of War, as a result of the race riot
in Omaha, Nebraska, General Leonard Wood “took personal charge of the situation,
and on October 1, 1919, proclaimed the city under qualified martial law.” Five days
later, because of the danger of violence in Gary, Indiana, during the steel strike,
General Wood, after conferring with the municipal authorities, placed that city also
under qualified martial law.
There have been other instances where the modified form of martial law existed
in fact, though undeclared. General Merriam placed restrictions on travel into and out
of the mining camps of Idaho’s Coeur d’Alene in 1899. In the Colorado disturbance
of 1914, saloons were closed (a common practice), the sale of arms was forbidden,
arms and ammunition were seized, and the opening of mines was forbidden as was
also the importation of strike-breakers. Public assemblies were forbidden and arms7
were taken in the West Virginia strike zone in 1921.
The military has been utilized on a number of occasions since World War I when
Presidents have sought to maintain public order, but have not invoked martial law. Such
examples include the routing of the Bonus Army in 1932 in the District of Columbia;
maintaining public order during desegregation efforts at Little Rock, AR, in 1957, the
University of Mississippi in 1962, and the University of Alabama the following year; and
quelling civil disturbances within Washington, Detroit, Chicago, and Baltimore during

1967 and 1968.

With the bombing of Pearl Harbor on December 7, 1941, the territorial governor
declared a condition of martial law, which “was approved by the President.”8 The action
was authorized by the Organic Act of the Territory of Hawaii, which provided for a
declaration of martial law by the governor, with the President being informed of such
action.9 The military remained in control of the islands until October 24, 1944.
On February 19, 1942, President Franklin D. Roosevelt issued E.O. 9066, which
authorized the Secretary of War “and the Military Commanders whom he may from time

6 Joseph E. Kallenbach, The American Chief Executive: The Presidency and the Governorship
(New York: Harper and Row, 1966), p. 553.
7 Bennett M. Rich, The Presidents and Civil Disorder (Washington: Brookings Institution, 1941),
p. 210 (footnotes omitted).
8 Robert S. Rankin and Winfried R. Dallmayr, Freedom and Emergency Powers in the Cold War
(New York: Appleton-Century-Crofts, 1964), p. 47.
9 31 Stat. 141 at 153.

to time designate” to establish “military areas” from which “any or all persons” might be
excluded in order to prevent espionage and sabotage.10
The following day secretary of War Henry L. Stimson delegated this authority to
Lieutenant General J. L. DeWitt, commanding the so-called Western Defense
Command. General DeWitt in his turn established by proclamation “Military Areas
Nos. 1 and 2,” consisting of three westernmost states and part of Arizona. By a series
of 108 separate orders he then, with the aid of the troops under his command and the
War Relocation Authority (established by another executive order on March 18,11

1942), proceeded to remove all persons of Japanese ancestry from these two areas.

This action did not involve martial law, although martial law was established within
at least one of the internment camps.12 Roosevelt issued the order as President and
Commander in Chief in fulfillment of his statutory responsibilities to protect national
defense material, premises, and utilities from espionage and sabotage.13
Since the conclusion of World War II, martial law has not been presidentially
directed or approved for any area of the United States. Federal troops have been
dispatched to domestic locales experiencing unrest or riot, but in these situations the
military has remained subordinate to federal civilian management. Technological
corrections and adjustments averted the need to invoke martial law due to Y2K failures
and resulting public disorder. The September 11 terrorist attacks on the World Trade
Center in New York City clearly demonstrated that civilian law enforcement authorities
were adequate to managing the situation without resort to martial law or even the
introduction of federal troops.
Relevant Authority
In fulfilling constitutional responsibilities to put down insurrection, rebellion, or
invasion, the President may resort to invoking martial law. His action, in this regard, is
subject to judicial review.14
The President may also exercise certain authority to create a condition similar to, but
not actually one of, martial law. In the event “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

10 3 C.F.R., 1938-1943 Comp., pp. 1092-1093.
11 Clinton L. Rossiter, The Supreme Court and the Commander in Chief (Ithaca, NY: Cornell
University Press, 1951), pp. 42-43 (footnotes omitted).
12 Robert S. Rankin and Winfried R. Dallmayr, Freedom and Emergency Powers in the Cold War,
p. 46n.
13 Prior to full-scale implementation of the President’s order, congressional approval of its intent
was sought and obtained with the legislating of supporting criminal penalties; see 56 Stat. 173;
these penalties, codified at 18 U.S.C. 1383, were repealed by the National Emergencies Act in

1976, 9 Stat. 1255 at 1258.

14 See, for example, Ex parte Milligan, 31 U.S. 2 (1866); Sterling v. Constantin, 287 U.S. 378

or Territory 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.”15 Such use of troops may
be under the management of federal civilian authorities, such officials of the Department
of Justice, or, in the event circumstances so merit, under armed forces command, in which
case the commanding officer in the field may be ordered, at least temporarily, to invoke
martial law. The President may order units of the Ready Reserve to active duty status16
or call units of the National Guard into federal service.17 As active duty military, these
forces could also be deployed to enforce federal law.
While some ambiguity exists regarding the conditions of a martial law setting, such
a prospect, nonetheless, is disturbing to many Americans who cherish their liberties,
expect civilian law enforcement to prevail, and support civilian control of military
authority. As long ago as 1962, sensitivity to these values was apparent when the
Kennedy Administration reportedly instructed a high-level emergency planning
committee that “nationwide martial law is not an acceptable planning assumption” in
preparing for the survival of the nation following a nuclear attack.18 Veteran news
correspondent Walter Cronkite stated the case a few years later when he wrote that “we
must not merely prepare for the survival of individuals but also for the survival of our
democratic system,” and, indeed, “to be certain that everything is done to preserve the
post-war population’s confidence in government.”19

15 10 U.S.C. 332.
16 10 U.S.C. 12302.
17 10 U.S.C. 12405-12406.
18 Edward Zuckerman, The Day After World War III (New York: Viking, 1984), p. 216.
19 Walter Cronkite, “Introduction,” in Eugene P. Wigner, ed., Who Speaks for Civil Defense?
(New York: Charles Scribner’s Sons, 1968), p. 11.