By Ana Maria Lankford, Analyst, CIB North America Desk
Date: 26 March 2020

Over the past few of weeks, COVID-19, the life-threatening disease that is caused by SARS-COV-2 (novel coronavirus) has wreaked havoc on the United States. Thus far, this pandemic has brought unprecedented orders by public officials, such as school cancellations, restaurant and bar closures, and even limitations as to when and who can venture in public. This new reality raises the question of what extent federal and local governments will go to in order to maintain virus-containment and public order. This question has brought the term martial law into the spotlight.

Martial law is commonly defined as the act of suspending all civil authority, such as state and local governments, and placing the areas in their jurisdiction under the control of the US Armed Forces. In addition, the implementation of martial law can include the temporarily suspension of various constitutional rights. Technically speaking, martial law is not actually a law; it is closer to an executive order. The difference between a law and an executive order is that the latter reserves the power to manipulate or suspend laws, without going through a legislative process as a law would. It is important to note that martial law is not clearly defined in the US Constitution, and the president is not granted any emergency powers by the Constitution. Rather, martial law is merely an interpretation of Article 1, Section 9, of the US Constitution.

Martial law is by definition complicated and unclear. A case in point is that there is lack of clarity about who has the right to declare it. It has often been argued that only Congress should possess the authority to implement martial law. Others argue that the president, as the commander-in-chief of the military, has the right to declare it. However, Congress possesses the authority to reject a president’s declaration of martial law, which would leave the decision up to the Supreme Court. Moreover, the concept of martial law does not clearly define what constitutional rights can be suspended, or to what extent military forces can be used in a national or state emergency. This is likely the reason as to why every time martial law has been implemented in US history, it has been used differently.

The declaration of martial law is a last-resort scenario, which is implemented when civilian authorities are incapable of maintaining order on their own during a state or national emergency. Traditionally, martial law has been used to keep order during uprisings following an emergency, or in times of natural disaster, where the potential for large-scale looting or street riots is high. Martial law has only been declared once on a national level in US history.

In the current pandemic situation, determining whether martial law will be implemented is a difficult task. Several US states have made efforts to keep their citizens from spreading the virus, by declaring state emergencies and putting their citizens under “stay-at-home” orders of varying degrees of strictness. These state-level orders suspend certain civil liberties, but do not involve military enforcement.

It can be stated with high confidence that the success of state-mandated “stay-at-home” regimes in restraining the spread of this pandemic will be crucial in determining whether the US will face a possible implementation of martial law in the coming days and weeks. If state governments are unable to keep their citizens from spreading the coronavirus, then the case rates of the disease will continue to increase. It will then become more likely that the US will face a “stay at home order” on a national level before martial law is ordered. While a nationally implemented martial law order cannot be completely ruled out, authorities will likely exhaust various efforts at containment and enforcement, given that martial law is considered as the last resort.

Sources

“Constitutional Topic: Martial Law“. The U.S. Constitution Online.

“Executive Orders 101: What Are They and How Do Presidents Use Them?” National Constitution Center.

“Martial Law – Further Readings” Further Readings – Military, Court, Governor, and Congress – JRank Articles.

“Martial Law and Constitutional Limitations” Legal Information Institute.