With an American populace on the edge of berserker, the prospects of martial law are suddenly more tangible than ever. Naturally, many of you are asking yourselves, “ Exactly how fucked are we?”

By Henry Chang

Photo by Spenser Withans

The perfect confluence of factors have come together to cultivate an instability not seen in the U.S. since, well, the last civil war. A hyper-politicized/polarized population has been met with a pandemic, economic downturn, and racial strife — all during an election year. The sitting president has made it clear that the only legitimate results of the election will be where he stands victorious. Many sacred-cow analysts predict a contested election, many in Vegas are betting on it. So, we have the perfect storm for dramatically expanded social unrest, widespread violence, and the breakdown of critical systems/norms. With all of these things making your average American very uneasy, martial law would become imminent.

Yet the legal basis for martial law is shaky, perhaps non-existent. Sure, there is precedent, yet there is no mention of martial law in the Constitution and there exists no legal mechanism to enact it. Only precedent. So when someone declares martial law, they become the law. 

Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, recently told Military Times, “The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws. If someone has declared martial law, they’re essentially saying that they are the law.”

So wtf exactly is martial law ?

Simply said, martial law is really the absence of law in regard to the political system. Laws governing citizens are dramatically expanded while laws governing political bodies are all but abolished. Historically, martial law has been invoked when civil rule fails and is temporarily replaced with military authority in a time of natural disaster or breakdown is civil society. According to Joseph Nunn, an expert with the Brennan Center for Justice, federal and state governments have declared martial law roughly 68 times throughout U.S. history. Martial law comes into play in times of “war, natural disaster and civic dispute” — 2020 has so far managed 2 of 3 of these.

There is no working legal definition for martial law codified into the U.S. system though a definition exists in the often-cited online legal encyclopedia JRANK.  JRANK describes martial law as a state in which, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended.” 

Martial law can be declared by the federal government, via the president or by Congress, or by state governments — often in times of natural disaster. However, the one exception for state officials is that when they enact martial law, it has to be congruent with the constitution — not so much for the federal government. According to the Brennan Center for Justice, “their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court.”

The federal government has enacted martial law for some it’s most inexcusable actions as well as during complicated times. The Atlantic summarized, “Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks. Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.”

Worst case scenario for November 3?

This is the elevator pitch: President Trump and Joe Biden are neck and neck in the electoral college. There is no clear winner on election day. Ballot counts are contested on both sides, existing election laws are subverted or altogether dismissed, and the nation enters into a constitutional crisis that can not be unlocked by SCOTUS as had happened in 2000. We enter a ‘grid-lock phase’ where existing institutions attempt to broker a solution. The Trump administration refuses any such negotiations and the streets of major American cities become flooded with protestors and supporters of both sides. Street conflagrations ensue. A few protesters are killed. A few cops are killed. The regional nature of this hostility manifests itself in much of the country’s state and municipal governments refusing to legally recognize a sitting Trump administration after January 20th, 2021. Trumps enacts martial law. Curfews are enacted. Habeas Corpus is suspended. Freedom of the press becomes a whisper in the wind.

The way martial law would be effectuated would be through the Insurrection Act. Asa precursor to invoking the Insurrection Act, the president “must first issue a proclamation ordering the insurgents to disperse within a limited time, 10 U.S.C. § 334.4. If the situation does not resolve itself, the President may issue an executive order to send in troops,” according to a 2006 Congressional Research Service report. The invocation of the Insurrection Act would allow Trump to subsequently enforce martial law. 

With far left protestors likely characterized by the Trump administration as the culprits behind widespread unrest, far-right militias would likely operate unfettered during such a lockdown. The president has made it clear that he would not be apprehensive to invoke such powers. Trump said in his infamous White House statement on June 1st — just prior to his military- produced photo opportunity outside Washington, D.C.’s St. John’s Church where he held a bible in hand, “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

One of the most complex problems surrounding martial law is that there’s no legislative or judicial check on the power. In fact, there is nothing substantive to the president from declaring martial law. Public opinion is the primary driver here. A population largely against the enacting of martial law is not a good recipe for the continuity of government. Widespread anger with martial law would cultivate a broad resistance, nationwide confrontation in the streets, and a possible toppling of the federal government. With so much regional specificity regarding attitudes about Trump, the government, and the American system as a whole, the U.S. would likely see ‘Balkanization.’ Yes indeed, martial law is a recipe for disaster. 

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