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(1/8) The @BrennanCenter has just published a new report on martial law, a concept that nobody really understands, including the Supreme Court. In it, I clear up some of the confusion that has long surrounded this subject. https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant
(2/8) The Constitution doesn’t mention martial law, it has no established definition, and the Supreme Court has only rarely discussed it. But it does exist, and it has been declared at least 68 times across U.S. history.
(3/8) When it comes to martial law, we can only identify a handful of clear legal principles: First and foremost, under current law, the president has no authority to declare it. Congress would first need to provide authorization.
(4/8) Second, the Constitution still applies under martial law, and judicial review is available to determine whether the military has violated constitutional rights.
(5/8) We also know that the individual states can declare martial law — in fact, historically they have used it far more often than the federal government.
(6/8) Unfortunately, beyond these and a few other principles, the Supreme Court’s martial law precedents are too old, vague, and inconsistent to say anything with real certainty.
(7/8) As a result, the scope and limits of martial law will remain dangerously unclear until Congress and state legislatures enact laws that better define them. And even though the president can’t declare martial law, he has wide statutory authority to deploy troops in the US.
(8/8) The Insurrection Act and Title 32 leave it almost entirely up to the president to decide when and where to use the U.S. military at home against Americans. These laws urgently need to be reformed - or better yet, replaced - to guard against executive abuse.
