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Can Coronavirus, COVID-19 Lead to Martial Law?

March 25, 2020


While the number of COVID-19 cases in the United States increases daily and more state and local governments implement shelter in place orders and mandatory quarantines, the fear of the imposition of Martial Law understandably becomes more concerning for many Americans. The short attorney answer to “Can Coronavirus, COVID-19 lead to martial law?” is: “It depends.”


What is Martial Law?


Who Has the Authority to Implement Martial Law?


While not specifically defined by law as noted by the U.S. Supreme Court in Duncan v. Kahanamoku (1946), martial law declarations typically include similar elements, such as the use of military force to some extent. Martial law can be declared at both the state and federal levels of government, generally by either the state legislative body or the governor (as outlined in most state constitutions) at the state level of government and by either the U.S. Congress or the U.S. President, at the federal level of government. The U.S. Supreme Court found the authority of the President or Congress to declare martial law in reviewing Article 1, Section 8 of the U.S. Constitution which states that Congress has the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions.” and Article 2, Section 2 of the U.S. Constitution that declares that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States.” While neither constitutional provision includes a direct reference to martial law, the U.S. Supreme Court has interpreted both to allow the declaration of martial law by the President or Congress.


What Can Happen During Martial Law?


 In some instances of martial law, military forces (typically including U.S. Army National Guard and maybe U.S. Army Reserve Forces) can be given the authority to make and enforce civil and criminal laws. Additionally, certain civil liberties, which are generally protected by the U.S. Constitution, may be suspended, such as the right of the people to be free from unreasonable government searches and seizures, freedom of movement and freedom of association if there is a compelling government interest (such as serious public safety interests) that cannot be achieved by any less restrictive means. Article 1, Section 9 of the U.S. Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion of the Public Safety may require it.” Habeas Corpus is judicial oversight over the arrest and detainment of citizens by law enforcement. Under martial law, a military body can potentially detain individuals without the oversight of judicial authorities.


Limitations on Martial Law


Limited Involvement of U.S. Military in Domestic U.S. Law Enforcement and Legal Caveats


The Posse Comitatus Act enacted by Congress, prohibits the use of U.S. military personnel from performing civilian law enforcement tasks including but not limited to investigations, arrests, apprehensions, interrogations and detentions, unless they are authorized to do so by Congress or the U.S. Constitution, notwithstanding the President’s broad Commander in Chief authority vested in the office by the U.S. Constitution as outlined above and as recognized in the jurisprudence of the U.S. Supreme Court. However, the Posse Comitatus Act does not preclude the use of Army National Guard and Air National Guard forces from acting in a civilian law enforcement capacity when they are operating in the borders of their state under the authority of their state’s governor as the courts have recognized the broad policing power of the state governments as recognized by the 10th Amendment of the U.S. Constitution. However, the Posse Comitatus Act would apply if the same National Guard forces were operating by activation of the U.S. President. For example, this law has limited President Donald Trump’s ability to utilize Army National Guard forces that he deployed to U.S. states that border Mexico, to act directly as law enforcement authorities. This law was enacted after many member of Congress during Abraham Lincoln’s Presidency believed that President Lincoln exceeded his authority during the U.S. Civil War by suspending Habeas Corpus and creating military courts that exercised jurisdiction over civilians without civilian judicial oversight.  While the Posse Comitatus Act generally limits Presidential authority to utilize U.S. military forces from engaging in civilian law enforcement duties, 10 U.S.C. § 252 authorizes the President to use military forces when 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, as the President considers necessary to enforce those laws or to suppress the rebellion.


Can Congress, President Trump, or my Governor or State Legislature Declare Martial Law in Response to Coronavirus, COVID-19


Potentially. While there does not appear to be any precedent for either a state government or the federal government declaring any form of martial law in response to a pandemic like COVID-19, it remains too early at the time of this publication to know everything that may happen as a result of COVID-19. The law basically states that the state governments have the authority to take lawful efforts to contain COVID-19 within their borders and that the federal government has the authority to take lawful actions to prevent the introduction of COVID-19 into the United States from foreign countries and to try to prevent the spread of COVID-19 across state borders. While these tasks are essential to ensure the swift eradication of COVID-19, martial law does not appear to be practically necessary or necessarily lawful under the present circumstances to achieve these lawful goals. However, if martial law is enacted anywhere in the United States as a result of COVID-19 in the coming weeks or months, you can almost guarantee that someone, somewhere in any area(s) affected by martial law will likely file a lawsuit against the martial law declaring authority, whether that be a branch of a state or of the federal government, to challenge the validity of the declaration of martial law. Any case will likely present a heavily fact intensive, and precedent review intensive analysis for the court(s) that eventually adjudicate the case(s) at the trial level and on appeal if this occurs. Unfortunately there is no yes or no answer for this case, just as we don’t know what the future may hold at this time. The legality of any martial law case would largely depend on the facts and circumstances surrounding the martial law case.  

Remember, that just because you may see the National Guard involved in the COVID-19 government response, does not mean that our country is anywhere near declarations of martial law. State and the Federal Governments frequently tap the resources of the National Guard to assist in crisis response.


Contact Biazzo Law, PLLC for Assistance


If you are a resident of Florida or North Carolina and you have concerns that your legal rights or the legal rights of a loved one may be or have been unlawfully revoked by a government or military authority, contact Biazzo Law at (561) 939-6300 for a consultation today. This blog is not to be construed as legal advice.


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