Five Questions About Martial Law, Part II: Authority and Posse Comitatus

Last week, in the first of a series of five posts, I attempted to survey the broad question of what "martial law" actually is. Today, in the second post in the series, I turn to the closely related question(s) of where the federal government's authority to impose martial law derives from, and whether such authority is consistent with the Posse Comitatus Act.

First, the short answer: In a trilogy of cases decided during the nineteenth century--Houston v. Moore, Martin v. Mott, and Luther v. Borden--the Supreme Court traced the "martial law" power to a series of statutes enacted by early Congresses, particularly the Calling Forth Act of 1795 and the Insurrection Act of 1807, that provided for the calling forth first of the militia, and later of the federal armed forces, to suppress insurrections and "execute the Laws of the Union." [For more on the origins of the Acts, see here.] In short, Justice Story in Mott and Chief Justice Taney in Luther both suggested that the power to call out troops to respond to domestic crises included the authority, when circumstances rendered it necessary, to impose martial law. An 1857 Attorney General opinion by Caleb Cushing reasserted the same view.

Today, these statutes are generally referred to as the Insurrection Act, and are codified at 10 U.S.C. §§ 331-335. [Note that this is the unamended version of 333.]  Although the statutes nowhere expressly reference "martial law," it is fairly widely accepted that, where conditions warrant, the authority to use the federal military (and the National Guard) to "restore public order" comes from these provisions.

That martial law would therefore have statutory authorization provides one fairly straightforward answer to the Posse Comitatus question, since the PCA excepts "cases and . . . circumstances expressly authorized by the Constitution or Act of Congress." Moreover, any argument that the Insurrection Act isn't "express[]" authorization is belied by the legislative history of the PCA, in which it was repeatedly reiterated that the Act would not prevent domestic use of the military when authorized by the Insurrection Act. [This, by the way, is why a lot of the post-Katrina posse comitatus discussion was beside the point; the Stafford Act provided more than enough statutory authorization for use of the federal military for domestic disaster relief.]

The much harder question, as it turns out, is the constitutional question. The Calling Forth Clause of Article I clearly empowers Congress "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." But ever since the 1807 Insurrection Act, the statutory authority has extended to use of the federal armed forces, as well. Thus, the constitutional question: What is the source of Congress's authority to empower the President to use the federal military to respond to domestic emergencies?

The closest the Supreme Court has come to answering that question is in pair of decisions from World War I--the so-called "Selective Draft Law Cases" and Cox v. Wood. In both cases, the Court construed the Militia Clauses together with Congress's power to raise armies, unanimously concluding that the Calling Forth Clause did not substantively limit Congress's power to subject citizens to a draft and to send drafted citizens overseas. At the heart of Chief Justice White's opinion in both cases was the notion that the Calling Forth Clause was an additional grant of power to Congress, and not a restriction thereof, a point Justice Stevens would reiterate in Perpich v. Department of Defense in 1990. 

More importantly for present purposes, the assumption underlying the analysis in the World War I-era cases and Perpich is the notion that the Calling Forth Clause should be read together with the Raise Armies Clause as broadly authorizing the interchangeable use of the National Guard (when federalized) and the federal military in those circumstances where the Constitution authorizes the use of either.

Of similar importance for present purposes is the notion that the power to provide for the use the federal military domestically is constitutionally invested in Congress, and not the President. As Jackson wrote in one of the less-quoted passages from his Youngstown concurrence,

Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

To be sure, there may still be a question as to whether the President may use the military to respond to a domestic crisis in the absence of statutory authority, but given the current language of the Insurrection Act, it is hard to contemplate a case that would justify such extreme action that falls outside the statutory text.  The harder questions, I think, are what limits (if any) the Insurrection Act places on the authority to impose martial law, and whether it would be sounder policy for Congress to restore to the statutory scheme time limits that were eliminated in 1861 -- which only authorized the domestic use of the military for thirty days (later sixty days) until the beginning of the next congressional session. I'll turn to those questions in the remaining posts.