How the president could invoke martial law

How does it work?

Martial law does have limits. The Posse Comitatus Act, passed on June 18, 1878, prevented federal troops from supervising Confederate state elections during Reconstruction. Though initially it only applied to the Army, it has been amended to include the Defense Department and, of course, the other service branches. That act prevents troops from enforcing domestic law, preventing such actions as searching and seizing property or dispersing crowds. However, National Guard units, which take their direction from state governors, are exempt from the Posse Comitatus Act.

One exception to Posse Comitatus, however, is the Insurrection Act, which allows the use of active-duty or National Guard troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings,” according to U.S. Northern Command.

The text of the Act reads:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”

But activating the National Guard even under federal Title 32 status, in which the federal government helps pay for Guard troops under state control, does not fall under the Insurrection Act, nor does it equate to martial law in ordinary circumstances.

“Governors call the National Guard all the time to respond to a storms or power outages, delivering medical supplies, stuff going on even during COVID,” Banks said. “That’s not extraordinary, nor would it be if the President federalized the National Guard for similar reasons, responding to a need to disseminate vaccines next winter, for example, would be perfectly appropriate, lawful, not martial law.”

Should we be worried?

“The sort of hellish scenarios that some people talk about is one where the president orders or regular military armed forces the United States to take over cities that he believes are engaged in an unlawful election, disruption or protests in the wake of an unresolved presidential election in the days after November 3,” Banks noted.

Though purely a hypothetical, Banks notes that the way it would happen would be through the Insurrection Act. In order to invoke the Insurrection Act, the president “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops,” according to a 2006 Congressional Research Service report.

“One of the important things to remember about the Insurrection Act is that it’s not martial law,” Banks said. “The purpose of utilizing the mechanisms of insurrection act is to enforce the law, not replace it.”

In June, at the height of the protests surrounding the death of a Black man named George Floyd at the hands of a white Minnesota police officer, President Donald Trump alluded to the Insurrection Act as a means of calling up active duty troops to quell civil unrest as protest erupted across the country.

“If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said in a White House statement on June 1 — just before he posed for a photo opportunity outside Washington, D.C.’s St. John’s Church with a bible amid an entourage, which included Joint Chiefs of Staff Chairman Gen. Mark Milley.

Milley publicly apologized for his appearance in Trump’s walk across Lafayette Square to pose for photos in front of a church partially burned during protests.

“My presence in that moment and in that environment created a perception of the military involved in domestic politics,” Milley said. “As a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.”

But while the Insurrection Act is law, the fact that martial law is not codified lands its use in a distinctly grey legal area.

“One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law,” Banks noted. “They can just do it. It’s not sanctioned by law.”

Banks noted that the civilian in charge of the military — in this case, Defense Secretary Mark Esper — is the key to ensuring the military is kept out of the 2020 elections.

“Secretary Esper is in a in a really critical role here,” Banks noted.

Esper addressed this in a memo to the force.

“As citizens, we exercise our right to vote and participate in government,” he wrote. “However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.”

Milley too feels strongly about the necessity of keeping the U.S. military out of politics and the election.

“We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else,” he said in an interview with NPR. “We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.”

As a result of these comments, Banks is optimistic that the worst case election scenario in the event of disputed election results might just be lawsuits in certain states where the outcomes are murky.

“A really important limitation in the event that there is martial law is that it’s highly unlikely to be tolerated in a situation where our civilian institutions are working,” Banks noted. “Martial law requires a complete meltdown. It requires the inability of our civilian institutions to manage government. It’s hard to imagine that.”

Military Times