17, 2020Įmail interview with Daniel Kobil, law professor at Capital University Law School, Dec. 20, 2020Įmail interview with Bernadette Meyler, Carl and Sheila Spaeth Professor of Law at Stanford Law School, Dec. It would be criminal."īrennan Center for Justice, Martial law in the United States: Its meaning, its history, and why the president can’t declare it, Aug. "We have a technical term for that," said Feldman. And in the case of martial law, it’s the opposite of conclusive and preclusive," Nunn said.Īnd if a president attempted to unilaterally impose martial law to secure a second term for himself in the absence of an invasion or rebellion? "If the president and Congress disagree, Congress wins, unless the Constitution gives the president ‘conclusive and preclusive’ authority over the issue. The last time the federal government imposed martial law was in Hawaii in 1941 after the Japanese attack on Pearl Harbor.Įven if such conditions existed in a part of the U.S., the president would have to get congressional approval to use the military, said Joseph Nunn, a fellow at the Brennan Center for Justice and author of an exhaustive study on martial law in America. "The president has a handful of statutory authorities to use the military for domestic law enforcement, but none of those authorities allow for the ‘imposition’ of martial law, versus using the military to restore order in situations in which civilian authorities are unable or unwilling to do so." As a result, one should think of martial law as a state of affairs arising from a total breakdown of civil order, Vladeck said. In 1866, the Supreme Court ruled in the case Ex parte Milligan that martial law cannot be imposed where civil courts are open and functioning. "Losing an election doesn’t count as a basis for invoking this power," Feldman added. Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School. "The president has no ability to unilaterally authorize himself to impose martial law, just as he could not issue an executive order allowing himself to decide judicial cases or controversies," said Daniel Kobil, a law professor at Capital University Law School. "It’s painful to hear about this theory, both because it’s not based in fact and because it’s dangerous to be thinking this way," said Chris Edelson, an assistant professor of government at American University. "The statutory authorities that the executive order invokes would not extend to declaring martial law," said Bernadette Meyler, a Stanford Law School professor. "There is literally nothing in the executive order that allows for any kind of use of military force where it isn’t already authorized by statute," said Stephen Vladeck, a law professor at the University of Texas School of Law and a leading expert in martial law. PolitiFact spoke to six scholars of constitutional law and presidential power and asked them whether the executive order allows Trump to declare martial law. However, their descriptions seem to reflect martial law at its most extreme: the suspension of civil authority and military control of civilian functions such as the courts. There are varying definitions of martial law, and many of the purveyors of this particular theory don’t specify what form they expect it to take. These claims echo extreme calls by Trump supporters for the president to impose martial law in light of unproven allegations that voter fraud swung the election to Joe Biden. "I’m talking about John Ratcliffe, the Director of National Intelligence, invoking a 2018 Executive Order."Īs he speaks, text from the " Executive Order on Imposing Certain Sanctions in the Event of Foreign Interference in a U.S. "Martial law or something very similar is going to happen, likely before this Friday, that’s what the experts are saying," says conservative television host Zach Drew in a Facebook video. Social media users are voicing a theory that President Donald Trump planned to invoke a 2018 executive order to impose martial law by Friday, Dec.
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