Why ‘Stay At Home’ Orders Are Not Martial Law

There have been some recent rumors that President Trump would impose martial law in response to COVID-19.

The absurd rumor caught enough traction to induce a response from the National Security Council. Fortunately, the rumor was fake. In any event, could it happen anyways? Probably not.

The concept of “martial law” is not well understood, let alone defined, in American law. Martial law is the imposition of direct military control of normal civilian functions by a government, especially in response to a temporary emergency, such as the Coronavirus.

The key takeaway here is that the military would take over civilian functions, which is unlikely here as we need all the help we can get to beat COVID-19. In U.S. history, between 1857 and 1945, martial law was declared 70 times, mostly by a state governor imposing it on a city, county or group of counties. Sometimes it was in response to violent civil unrest. Most times however, it was to stop strikes on behalf of business interests. These declarations lasted anywhere from days to years. Martial law was last declared in the United States in 1966, when the governor of California imposed it to suppress unrest in the Hunters Point neighborhood of San Francisco after a white police officer shot a black teenager.

The Supreme Court has addressed martial law in only a handful of cases, and even then there is little guidance about where the authority of lawmakers and the president comes from. At the federal level, some have argued that the president has inherent authority under the Constitution to declare martial law.

The more persuasive view is that the president can declare martial law only if Congress has authorized it, as was the case in Hawaii. The rationale is fairly straightforward. The power to declare martial law comes from Congress. Congress controls when, where and how it may be used and whether to take the power away.

Enter the Posse Comitatus Act, which bars federal troops from engaging in domestic law enforcement activities like arrests and detentions. Of course, this is not an absolute bar. Federal troops can still help with a wide range of disaster response efforts without violating the act, as we’ve seen in the aftermath of Hurricane Katrina and the actions at the southern border. One notable exception to the Posse Comitatus Act is the Insurrection Act, which allows the president, upon request of a state’s governor or legislature, to use federal troops to suppress an insurrection in that state.