Martial Law

The answer is no--provisionally.

The third paragraph of Article One, Section 10, reads:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

It would appear from that that a Governor of any one of the Several States could not impose martial law, except on an allegation that imminent danger imposed upon him or her the necessity of taking military action. It is highly unlikely that any Governor could make a plausible case to that effect.

More significant, though, is the Posse Comitatus Act of 1878, in which Congress prohibited the involvement of the military in domestic law enforcement without prior Congressional consent. Therefore, it would seem that Governors may not declare martial law, but may only appeal to the Congress for such authority.

The declaration of a state of emergency existent in any particular region of a state by a Governor, or in any particular region of the country by the President, however, raises some problems with this issue. During Hurrican Katrina, Mayor Nagin declared that New Orleans was under martial law--but as he had no such authority, that was technically not true. But, of course, for so long as the police believe that they have been granted unique powers, the point of whether or not they have the legal right is moot.

Early in the Reagan Administration, Oliver North helped FEMA (the Federal Emergency Management Agency) to draft plans for dealing with natural disasters, which accorded the right to impose martial law by executive order, and to suspend the constitution and to set up internment camps. This has never been challenged, but, then, it has never been attempted, either. Of even more interest is the bill passed this year known as the John Warner Defense Authorization Act, which authorizes the President to station troops in civilian areas and to nationalize and deploy the National Guard upon an allegation of a state of emergency. This, of course, has not been challenged or reviewed by the courts, nor has it been invoked.

The Reagan era executive orders were never used, either, although it is significant that Reagan approved the measures, including plans for internment camps, and the bureaucrat who wrote the plans publicly admitted that his intention was to provide for internment camps for "black militants" in the event of a "race war." (Was that perhaps wishful thinking on someone's part? It is alleged that this gentleman's plan provided for rounding up 21 million black Americans and putting them in camps. That claim is disputed.) This gentleman (don't recall the name), stated that this did not violate the Posse Comitatus Act, claiming that that Act had been "misinterpreted" in the past.

What is important is that no one has had the brass to attempt it. In the War of 1812, late in 1814, Andrew Jackson declared martial law in New Orleans--but i don't believe the Governor of Louisiana was consulted, nor do i know that he objected. In 1941, martial law was declared in the Territory of Hawaii--as it was not a state, its Governor was a Federal appointee, and i don't know that he objected.

The reason this question would exercise people's imaginations today is obvious. The question is whether or not any administration could get away with it for very long. After all, the GIs and the National Guard are Americans, too--i suspect they would not long consent to act in a manner known to be offensive to the population.

Matial Law
Setanta-
Thank you for your thorough research and clear exposition. You are a treasure!

The reason for my question was a passage on on Huey Long in www.wikipedia, which states:

"By 1935, Long's most recent consolidation of personal power led to talk of armed opposition from his enemies. Opponents increasingly invoked the memory of the Battle of Liberty Place of 1874, in which the white supremacist White League staged an uprising against Louisiana's Reconstruction-era government. In January 1935, an anti-Long paramilitary organization called the Square Deal Association was formed; its members included former governors John M. Parker and Ruffin G. Pleasant and New Orleans Mayor T. Semmes Walmsley. On January 25, two hundred armed Square Dealers took over the courthouse of East Baton Rouge Parish. Long had Governor Allen call out the National Guard, declare martial law, ban public gatherings of two or more persons, and forbid the publication of criticism of state officials. The Square Dealers left the courthouse, but there was a brief armed skirmish at the Baton Rouge Airport. Tear gas and live ammunition were fired; one person was wounded but there were no fatalities.

Strictly speaking, Article One, Section 10 of the Constitution and the Posse Comitatus Act of 1878 would have prohibited such action. The issue of Governors calling out the National Guard to police the streets is one of those exceptions to such rules which has never, to my knowledge, been challenged in Federal Courts. Long was a Senator from Louisiana at that time, and certainly didn't have the power to tell the Governor to do anything--it is possible that the article you have read is in error.

People fling the term "martial law" around rather loosely, so i suggest that you do some careful research at other sources to verify what you have read. Wikipedia is a good first stop on any subject, but if there is ever any doubt, or if the material seems suspicious, or contradicts something else you have read, it's a good idea to look for other sources. It was in the late 1920s that state police agencies were first created, so it is possible that there was then no state police organization in Louisiana upon which the Governor could have relied. Some things you want to question are: Was the Governor in Huey Long's pocket (a distinct possibility)? Was there actually a proclamation of martial law? If so, was anyone detained, and was the detention authority ever challenged? Was there any state police organization then in place in Louisiana? (Note that state police organizations were only created in the 1920s, as the proliferation of the automobile began to make it necessary to build thousands of miles of paved roads in each state--one of Huey Long's accomplishments while Governor was building thousands of miles of paved road in Louisiana. Therefore, in the wake of the Great War, with the United States enjoying a boom [agricultural sales to a prostrate Europe largely fueled this], many tens of thousands of miles of paved road were laid down, and the Federal system of U.S. Routes was begun [such as Route 1, which runs from Key West, Florida to the Maine/New Burnswick border]). The need for effective policing quickly became obvious. (I don't know if it is true, but some people claim that Norman Schwartzkopf, Sr., the father of the commander in the Gulf War, was the first State Police Superintendent, when he was appointed in New Jersey in 1921.)

If Huey Long had built so many miles of paved road in Louisiana, and with Federal highways being built, i would be very much surprised if there were no State Police in Louisiana in 1935. Therefore, the next question would be, if the Governor called out the National Guard, why didn't he rely upon the State Police? Before state police forces existed, Governors did, although rarely, call out the militia (which did not formally become the National Guard until the 1905 Dick Act) in cases of public disturbance. The entire incident sounds fishy, but if true, there has to have been a good deal going on behind the scenes to have justified the action. If the Governor actually did declare martial law, that action was clearly not legal.

Do some more checking, if you have sufficient interest.

Martial Law
Setanta-
Than you again. You are a gentleman and a scholar.

The article indicates that he was effectively giving orders to the governor. I don't think he cared about the law other than to pursue his own agenda.

"Long continued to maintain effective control of Louisiana while he was a senator. Though he had no constitutional authority to do so and grossly blurred his involvement in federal and state politics, he continued to draft and press bills through the Louisiana State Legislature, which remained in the hands of his allies. He made frequent trips back to Baton Rouge to pressure the Legislature into continuing to enact his legislation, including new consumer taxes, elimination of the poll tax, a homestead exemption and increases in the number of state employees. His loyal lieutenant, Governor Oscar K. Allen, dutifully followed Long's policy proposals, though Long was known to frequently berate the governor in public and take over the governor's office in the State Capitol when he was visiting Baton Rouge. Having broken with the Old Regulars and T. Semmes Walmsley in the fall of 1933, Long inserted himself into the New Orleans mayoral election of 1934 and began a dramatic public feud with the city's government that lasted for two years.

...

By 1934 Long began a reorganization of the state government that all but abolished local governments in New Orleans, Baton Rouge and Alexandria, and gave the governor the power to appoint all state employees. Long passed what he called "a tax on lying" and a 2% tax on newspaper advertising revenue, and he created the Bureau of Criminal Identification, a special force of plainclothes police answerable only to the governor. He also had the legislature enact the same tax on refined oil that had nearly gotten him impeached in 1929, but he refunded most of the money after Standard Oil agreed that 80% of the oil sent to its refineries would be drilled in Louisiana.

It is interesting that so far in this discussion both Long and Nagin have been mentioned in that both are from Louisiana and there is no provision for declaring Martial Law anywere in the laws of Louisiana. The laws allow for a declaration of a "State Of Emergency" but the powers that executives get from that fall far short of martial law.

As Set mentioned, people tend to play fast and loose with the term -including politicians witihin the state. :wink: