Marjorie Taylor Greene texted Mark Meadows on Jan. 17, 2021, that Trump should declare "Marshall Law." Misspelling isn't her only problem.
Martial Law is a legal system where the military replaces civilian authorities to maintain order. Habeas corpus can be suspended.
The last time the federal government declared martial law was in Hawaii in 1941 after the attack on Pearl Harbor, and ended on Oct. 24, 1944.
The last state to declare martial law was Maryland in 1963 because of the Cambridge riots, and called up the Maryland National Guard. This was where too many civil rights demonstrations made the white population get upset and ugly and things got out of hand, according to the governor.
The last city to declare martial law was Isla Vista, next to University of California at Santa Barbara, in June of 1970 during anti-Vietnam War protests. Governor Ronald Reagan called in the National Guard and made a 6pm-6am curfew.
The Brennan Center has a list of the 68 times martial law has been imposed in the United States with when, where and why.
It's been a long time since anyone has declared it. Donald Trump is taking us in that direction. His first step is invoking the Insurrection Act of 1807. This could be for massive civil disorder, an act of insurrection like Jan.6th was, or an armed rebellion. What has happened in the LA protests is nothing like what is needed to use the Act, as much as Trump and Fox News try to blow it out of proportion.
After invoking, but before exercising, Trump must perform 10 U.S.C. § 254, Proclamation to Disperse. If participants do not, the president can proceed in calling up the National Guard and military to take control of the situation.
But this still isn't martial law. The Constitution doesn't mention it, and no Act of Congress defines it.
When discussing the possibility of a federal martial law power the [Supreme] Court has never clearly indicated whether the president could unilaterally declare martial law, or if Congress would need to first authorize it.
There has not been the same problem with states or cities declaring it.
The Court has had a murky and confusing history about whether Congress could or must declare martial law before a president could enforce it.
Looking at the Supreme Court's decisions, one can pick and choose from them to argue 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 US constitutional law. The precedents thus provide little help in determining the legal basis for martial law --- or, assuming that federal martial law is even permissible, whether it's use is controlled by Congress or the president.
The Posse Comitatus Act limits the president's power to call up the National Guard and military even after the invocation of the Insurrection Act. Neither have anything to say about martial law.
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 that 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 said in Milligan, "the Constitution of the United States is a law for rulers and people, equally in war and peace, and carries with it the shield of its protection all classes of men, at all times, and under all circumstances."
The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left "forever inviolable."
The Constitution gives Congress authority to regulate the domestic deployment of the military. I've gone over those and their limitations. The legislation there is does not give the president the power to declare martial law, so he has no power to do so. There is no statute the president can cite. Invoking the Insurrection Act may feel like martial law, but it is not.
There may be a situation so dire that a president could try to impose martial law, but it is the states that can actually do it.
Where does that leave us with Donald Trump? He has already stretched the power to call out the National Guard. It's stupid that we have to let this go through the courts, when it obvious to anyone that he has overreached his authority based on the conditions in LA. The LAPD didn't let anything get out of hand. Using the National Guard to accompany ICE agents, same answer. Sending in the Marines is prohibited by the Posse Comitatus Act. There is no punishment for Trump having acted illegally. It just stops him from continuing to do it this time.
I thought for sure that Trump was on his way to invoking the Insurrection Act, but he got enough mileage out of 10 U.S.C 12406, that he didn't need to.
Trying to declare martial law would be a step too far, even for Trump. Military commanders would have to be thoroughly convinced that it was necessary. I hope we still have military that knows to question suspension of habeas corpus, and all the other acts they would have to do.
As National Guardsmen in LA have said, when it comes to being law enforcement, they didn't sign up for that.
Trump can't declare martial law, but there's nothing stopping him from trying it. There would have to be massive domestic unrest, or an actual invasion to even think about it. But this time, Trump isn't following any rules, much less the rule of law.
