On September 15, 1863, President Lincoln imposed martial law authorized by Congress. [16] The Enabling Act allowed the president to suspend habeas corpus throughout the United States (which he had already done on April 27, 1861, under his own authority). Lincoln imposed the suspension on « prisoners of war, spies or aides and instigators of the enemy » as well as other classes of people, such as conscientious objectors. The president`s proclamation was challenged in Ex parte Milligan, 71 US 2 [1866]. The Supreme Court ruled that Lincoln`s imposition of martial law (suspending habeas corpus) in areas where local courts were still in session was unconstitutional. Apart from these general principles, there are many questions that are simply impossible to answer given the unclear and confusing legal precedents. In addition, while the president does not have the power to replace civilian agencies with federal troops, under current law he does have the power to deploy troops in support of civil law enforcement. Until Congress and state legislatures adopt stricter and better-defined limits, the exact scope of martial law will remain unclear, and the president`s ability to order the deployment of national troops just before martial law will be dangerously broad. This report aims to eliminate the confusion surrounding martial law. In doing so, it relies on recent jurisprudence, the few rules that can be derived from Supreme Court jurisprudence and general principles of constitutional law.
It concludes that the president does not have the power, under current law, to declare martial law. Congress may be able to approve a presidential proclamation of martial law, but this has not yet been conclusively decided. State officials have the power to declare martial law, but their actions under the Declaration must be consistent with the U.S. Constitution and are subject to review by a federal court. It was originally published in response to Lincoln`s call for martial law during the Civil War to use military courts to bring civilians to justice and to protect freed slaves from abuses in newly liberated post-secessionist states. In most cases, however, the rights conferred by the Constitution are not absolute. When courts decide whether these rights have been violated, they take into account the circumstances – including not only the impact on the person whose rights are affected, but also the interests of the government – and there is often a compromise. footnote3_rxi0tq6 3 United States v.
Ritter, 534 U.S. 112, 118–19 (2001) (« The touchstone of the Fourth Amendment is the adequacy, and relevance, of a search is determined by assessing, on the one hand, the extent to which it infringes an individual`s privacy and, on the other hand, the extent to which it is necessary to promote legitimate government interests. »); Sable Communications v. FCC, 492 U.S. 115, 126 (1989) regulate the content of constitutionally protected speech in order to promote a higher interest if it chooses the least restrictive means of promoting the articulated interest.); and Moyer, 212 U.S., p. 84 (« [W]as due process of law depends on circumstances. »). In the kind of state of emergency that would justify the imposition of martial law, the government may not have to provide the same full procedures normally required before arresting someone or seizing property. But due process rights remain, along with all other constitutional rights, and federal courts have the power to decide whether they have been violated. footnote4_9e6xw79 4 Boumediene, 553 U.S. 723; Hamdan, 548 U.S. 557; and Hamdi, 542 U.S. 507. The Supreme Court has ruled that individual states have the power to declare martial law — and such a declaration is only valid if it is authorized by the state`s constitution or laws.
States have declared martial law much more frequently than the federal government. But even under martial law, state officials are bound by both the U.S. Constitution and applicable federal laws. In addition, individuals can challenge a declaration of state martial law by seeking an injunction in federal court — and if they are imprisoned, they can seek the habeas corpus order.
