Can Martial Law Happen In America?

On Tuesday the president of South Korea, a key American ally and heretofore one of the world's most advanced democracies declared martial law and sought to suspend political activity and put the media under government control.  The motivation for the move was disagreement with the opposition party that he sought to silence. He seemingly over played his hand and the declaration has been voided and Korea's president now faces impeachment, but in the process he created chaos in that important country.  Here at home in America with Trump posed to return to the White House next month, many immediately pondered whether such a move could happen here in America once Trump regains the presidency.  A long column in the New York Times looks at this question and suggests that the "short answer" is no, but the longer answer is yes, it could happen here.  For generations the sweeping powers of the presidency have been restrained by the good will and circumspection of America's presidents. With Donald Trump, we have an unscrupulous president set on grifting while in office and someone who would love to arrest and prosecute his political adversaries and critics.  The take away from the piece is to be very afraid, particularly in view of the extremists with whom Trump is surrounding himself.  Political norms and circumspection are disdained by Trump and his entourage of misfits and extremists.  Here are column highlights:

On Tuesday, the president of South Korea, Yoon Suk Yeol, suddenly declared martial law. He suspended political activity in one of the world’s most advanced and prosperous democracies and attempted to place the media under government control.

Seemingly confused and surprised troops struggled to contain a rebellious National Assembly, which voted immediately to end military rule, but not before a series of chaotic scenes that shocked the nation. The president backed down, mere hours after triggering a political crisis that threatened democratic rule.

As the drama played out in South Korea, my phone lit up with a question from friends and media colleagues — including from some of the most sober-minded people I know. Can this happen here? Can an American president — or any other American leader — create a similar political emergency?

The short answer is no. The longer answer is yes — if a president (or a governor) exploits ambiguities in American law.

Let’s deal with the short answer first. Unlike South Korea, the United States has no clear constitutional mechanism for a president to simply declare military rule. State governors do have the ability to declare martial law in the event of an emergency, but governors can’t abrogate the federal Constitution, and any declaration of state military control is subject to judicial review.

There have been a number of limited declarations of martial law in American history. Gen. Andrew Jackson declared martial law in New Orleans for three months during the War of 1812, and President Franklin D. Roosevelt declared martial law in Hawaii after the Japanese attack on Pearl Harbor, to give two examples.

But there is no American constitutional authority for military rule comparable to the one in the South Korean Constitution.

The longer answer, however, is far less reassuring. While there is no constitutional mechanism for military control, history demonstrates that American leaders will sometimes press their war powers beyond the constitutional breaking point (while Roosevelt’s declaration of martial law in Hawaii was defensible, his internment of Japanese Americans was not).

Even worse, there is a statutory basis for military intervention in domestic affairs, and the statute — called the Insurrection Act — is so poorly drafted that I have come to call it America’s most dangerous law. . . . . The law dates to 1792, and it permits the president to deploy American troops on American streets to impose order and maintain government control.

There is nothing inherently wrong with granting a president such power, so long as it is properly circumscribed. . . . . But the statute itself is terribly written. The first section isn’t problematic — it permits the president to deploy the military upon the request of a state legislature or governor, if the legislature can’t convene. That makes sense. If a governor has lost control, he should be able to appeal to federal forces for help.

The next two sections of the statute, however, are much worse. Section 252 of the act gives the president the authority to deploy troops domestically “whenever 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 by the ordinary course of judicial proceedings.”

Section 253 has similar language, granting the president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.” . . . .  Note the extreme trust placed in the president. He can call out troops when he considers it necessary. There is no congressional oversight. If he believes he needs troops in the streets, he can order troops in the streets.

And in fact, Trump almost invoked the Insurrection Act during his first term. In the summer of 2020, he considered ordering federal troops to suppress the urban unrest that exploded after the murder of George Floyd, but he ultimately backed down after his secretary of defense, Mark Esper, publicly stated his opposition to Trump’s plan.

Since he left office, however, Trump has openly regretted not deploying troops in 2020, and his allies have urged him to use the Insurrection Act during his second term, to control the border or to suppress demonstrations. Or both.

Presidents aren’t the only American leaders who can cause chaos, and a number of Republican governors are seeking to expand their own authority to use force.

Article I, Section 10 of the Constitution denies states the power to engage in war unless they are “actually invaded.” . . . Yet a number of red-state governors — including, most notably, Gov. Greg Abbott of Texas — have deemed the surge of migrants at the border an “invasion.” Texas used this purported invasion to justify placing barriers in the Rio Grande, although those barriers would otherwise violate federal law.

In the words of James Madison, the term [invasion] refers to “an operation of war,” and “to protect against invasion is an exercise of the power of war.” . . . . the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response.”

Judge James Ho — who is reportedly on Trump’s short list to fill the next Supreme Court vacancy — wrote that it’s not for courts to decide whether an invasion occurred. That’s a political question, to be decided by the elected branches of government. Under this reasoning, if the president says there’s an invasion, then there’s an invasion. Similarly, if a governor says there’s an invasion, then there’s an invasion.

If Ho’s reasoning was adopted by the Supreme Court, then unscrupulous presidents and governors would enjoy immense new authority over war, peace and due process. Economic migrants and asylum seekers could be treated as enemy combatants. Presidents could order large-scale detentions, without granting detainees access to federal courts.

Before the Trump era, not that many Americans perceived how much our democracy’s very survival depended on the honor and decency of American presidents.

Trump can still use the Insurrection Act to call out the troops when he wants to call out the troops. He can declare an invasion and dare the courts to disagree. Neither power is as broad as a South Korean president’s power to declare martial law, but they are dangerous to American democracy.

We have long trusted presidents not to abuse their power, and most presidents have proven worthy of that trust. Trump is not. While we can hope that the courts and Congress will restrain him in his second term, American law gives him more power than he should rightfully possess.

Be very afraid for the future.