Martial law is a concept that dates back to the earliest days of our democracy. If martial law is declared, military authority takes precedence over the governance of the state and federal executive, legislative and judicial branches. The President and Congress each have the power to declare martial law at the federal level, and governors can declare martial law when permitted by state constitution.
As the novel coronavirus (COVID-19) pandemic continues to grip the country, questions have swirled as to whether the federal government or individual states might declare martial law. While no governing body has made such a declaration at the time of this writing, the President and various governors have begun taking extreme measures and citing various decades-old statutes to exert similar emergency powers. As the situation continues to develop, there is a very real possibility that even more-extreme measures are on the horizon. Whether that means a declaration of martial law or something else remains to be seen.
When Can the U.S. or an Individual State Declare Martial Law?
To be clear, a declaration of martial law is indeed a very extreme measure that is reserved only for true times of crisis. Historically, it has been used “to control society during war or periods of civil unrest or chaos.” In order for a federal or state declaration of martial law to become a viable possibility during the novel coronavirus (COVID-19) pandemic, circumstances would need to escalate.
At present, there are no significant signs of civil unrest, and we are not experiencing riots or other forms of mass chaos that tend to accompany extreme shortages of food and medical supplies. Hopefully, this will continue to be the case throughout the duration of the coronavirus outbreak. But, if it does not, and if threats to public safety begin to overwhelm law enforcement, it is possible that a declaration of martial law (or multiple declarations of martial law) could be on the table. After all, the President has already characterized himself as a “war-time president” because of COVID-19 and we are seeing runs on stores for basic necessities, such as toilet paper, paper towels and other non-perishables.
What Needs to Happen Prior to a Declaration of Martial Law?
While there are no specific mandatory precursors or prerequisites for a martial law declaration, there are many steps that federal and state authorities can – and will – take to respond to a national crises such as the novel coronavirus (COVID-19) pandemic short of declaring martial law. This includes steps such as invoking the National Emergencies Act and deploying the National Guard.
One of the primary reasons why declaring martial law is considered a means of last resort is because it results, or can result, in the deprivation of a number of our fundamental rights as American citizens. Learn more about the potential legal consequences of a martial law declaration during the novel coronavirus pandemic.
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