If I Were a US President, How Would I Create Martial Law?

(L) Fred Korematsu before his trial in 1942, Photo: famoustrials.com (C) Louisiana governor Kathleen Blanco (1942-2019), Photo: USAToday.com (R) Shanghai in Lockdown, Photo: newfoodmagazine.com

by Mary W Maxwell, LLB

Many panic-producing issues are in the air today: possible war with Russia or China, financial bankruptcy of some states or the US nation, imminent death for some people in whom the vaccine caused damage, water shortage, an increase in mind control (possibly connected to the 5G towers), and the loss of sovereignty to NATO. Everyone is overwhelmed. Could the president impose martial law?

As a device to make the martial-law discussion perky, I will pretend I am the US president. Of course, I will adhere to constitutionality, including US Supreme Court rulings that have interpreted the constitutionality of martial law.


What I am really asking here is: to what extent I, President Mary, can use violence against the American people? Can I instruct officers to use tear gas on demonstrators? Can I use dogs? How about ‘tasers?  Drones? Can I announce a curfew on businesses?  Can I force people to shelter in place? Can my officers enter homes and take property, such as food? Can I enforce evacuation in the face of, say, a volcano eruption?

Whom would I instruct — who are my “officers”?  And which laws, made by Congress over the years, give me power to use violence, other than that which is specified in the Constitution? And do some of those laws violate the Con?  If so, President Mary would not impose them. President Mary is a New Hampshire type.

To get the gist of the Founders intentions, we have to imagine what they, in 1787, saw as dangers to the Union. The Framers of the Constitution were easily able to imagine rebellion as a danger, and /or the takeover of a particular state by a tyrant. In 1787 (pre-Constitution), a small rebellion in Massachusetts, against tax collectors, was put down violently.

The first major rebellion occurred in the 1860s and is known as the Civil War. It was met not just with martial law, but with full war. The next example occurred in 1942 when Japanese Americans on the West coast were interned against their will.  Recently, in 2013, when officials in Boston were conducting a manhunt for the Marathon bomber, so-called, there seemed to be martial law, but the governor of Massachusetts, Deval Patrick, had only “advised” people to stay home; neither he nor the feds ordered it.

Violence Authorized by the Constitution

The word “martial” means military. Per Article I, Sec 8, clause14, “The Congress shall have Power to … make rules for the Government and Regulation of the land and naval Forces.” But that has to do only with legislating for the behavior of military personnel — as found in the uniform Code of Military Justice, the UCMJ.  If I, as president, put citizens under martial law, it essentially means that soldiers will boss them; the courts cannot preserve their rights

Can I do that?  Yes, but only if Congress permits me to.  Such has been the interpretation of martial law — it is not explicitly provided for, in the parchment. The whole deal on martial law is taken from Article I, section 9 which says: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.”  The habeas corpus writ is our general protection against being imprisoned without charges. Ergo, when that writ is suspended, the nation is experiencing martial law.

In 1942, when President Franklin Delano Roosevelt wanted to imprison (“intern”) persons of Japanese descent, he wrote Executive Order 9066. But he knew his limits and did not impose that EO until he got Congress’s permission. As part of that martial law, a young man, Fred Korematsu, disobeyed a curfew and was imprisoned.

Later, in 1984, Korematsu was exonerated — because the government had failed to produce exculpatory evidence which it had in file. Judge Marilyn Patel in California specified that she was ruling only on Korematsu’s innocence.  She noted: “Thus, the Supreme Court’s decision stands as the law for this case and for whatever precedential value it may still have.”  (I suspect that the Korematsu exoneration was intended for the very purpose of reaffirming that we can intern a group of American if we feel like lt.)

Let’s not forget that the executive branch never has authority to make law. Article II, which lays out all the president’s powers, is pretty thin on the ground. Sure, it says, in section 3: “He shall take care that the laws be faithfully executed” — which is a biggie (and he has, for decades, been scurrilously remiss about it!). But if he needs a law to be passed, he requests it from Congress, per Article I, sec 8, clause 18. (As a citizen, clause 18 is of course my favorite, but were I the Main Man, I would still respect it.)

“National Guard” — a Misnomer

Article II, sec 2, says of the president: “[He] shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States.”

Oh, what about the national guard?  I just told you. Parchmentwise, it is called “the Militia of the several States.” And who may decide to call up that militia? Take a guess.  Is it the president, as noted above as being their commander in chief when they are called into actual service?

No. He (or in my case, she) has to wait for Congress to call them.  I quote Article I, sec 8, clause 15:  “The Congress shall have Power … to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

I note that in 2005, during Hurricane Katrina, Governor Kathleen Blanco of Louisiana did not accede to President Bush’s request to “nationalize” the situation in her state.  Of course it should not have been Bush doing the asking. It should have been our Legislative branch, K?

In 1976, Congress passed the National Emergencies Act. Note the word national.  Hitherto, it had been the prerogative of governors to deal with emergencies. They could call on their own national guard troops, or ask other governors to supply help. The Constitution does provide for the use of such troops, which were then called the militia, as distinct from the army.

(Undoubtedly the term “national guard” is a misnomer, and should be corrected. They are the Staes’ Guards.)

My Emergency Powers

Perhaps President Bush, during Katrina, was trying to use the National Emergencies Act. Today, as President Mary, I would have many emergency powers — but as Citizen Mary, I think most of them are unconstitutional and hence void.  What makes them unconstitutional?  They hand over to the Executive Branch some powers that belong to the Legislative Branch — which really means they belong to the People. Congress is not allowed to give away its powers (our powers).

Why did Congress come up with a National Emergencies Act in 1976? The alleged reason was that many emergencies had been on the books since WWII, yet had not been officially ended. This Act would clean-up that bookkeeping mess. But Congress’s new enactment erred — it says that allows a president can declare a national emergency and Congress must stay its hand for at least 6 months.  What!  Since, as we saw, the Constitution does not give the president emergency powers, this was an abdication. (It could be corrected now by Congress.)

And whatever happened to the provision so carefully made by the Framers of the Constitution: Article I, section 9: No money shall be drawn from the Treasury but in Consequence of Appropriation made by Law“? The codified wording of the National Emergencies Act, found in the United States Code (the USC) at 50 USC 1641, contains the following:

“(c) When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the United States Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.”

Congress abdicated the purse! The National Emergencies Act lets the president write big checks with no legislative supervision.

What about Tasers, Dogs, Forcible Entry, Etc?

Let’s switch focus now to the actual tactics in the field that could be used during martial law. The players would be soldiers, not local police. They have been trained for combat.  It has not been part of their outlook to worry about the civil rights of the people they are rounding up or tossing into internment camps, as those people in war are the nation’s enemies not their own citizens.

During the Covid emergency, in Canada and Australia, we saw police use very rough tactics, even throwing a pregnant woman on the ground, and tear-gassing the elderly. Recently, during a massive rally in Canberra, Australian cops blatantly used the pain truck — which the US has used in Iraq.  It causes a crowd to disburse, as it gives people a headache and/or some mental confusion.

American cops and prison guards have famously used brutality, in spite of constitutional protections. Even when a victim sues the government, citing the clear provisions of the Civil Rights Act, at 42 USC 1983, justice is rarely obtained. And that does not involve soldiers or martial law!

So what should we expect? I mean, what does the law say?  Martial law is an extremely under-developed are of jurisprudence. I think most people get their education (miseducation) from television. They see brutality and sigh “Ho hum.” Once again, Congress is not doing its job, but neither is the judiciary.

I will cite but one case. A man named Albert Florence who was picked up for a traffic violation was strip-searched at jail. He objected all the way to the US Supreme Court but there it was decided that the jailer needed protection (if Mr Florence was carrying explosives or whatever).

With such a ruling on the books, I don’t see any relief coming from courts. People need to be reminded that here is nothing self-enforcing about the Bill of Rights.  If one or more of the three branches of government lets us down, we can’t sit idly by. We gotta do what we gotta do.

Note: SCOTUS did come to our aid on this in 1931, and the ruling is still precedential. The case is Home Building v Blaisdell. “Emergency does not create power.  Emergency does not increase granted power….” Just think how vast that statement is, and yet hardly anyone knows it exists.

My Day Job

I am not really a president.  I am a legislator wannabe — currently on the Republican ballot for US House of Reps in New Hampshire’s District 1. My real Day Job, for the last 17 years or so, has been to work on these issues privately, as an activist and legal researcher.

In the last year we saw Canada and Australia practice martial law. I am not sure it was technically martial law, but it was brutal and in Canada’s case it violated the Charter of Rights.  Australia does not have a Bill of Rights. I think most people — and this includes Americans, too — took their cue from the word “Emergency” and let the government get away with it. It’s hard to stand up to a proclaimedly moral leader who points out the dangers involved in the spread of a new disease.

I repeat, though, that the invoking of martial law does not include health matters, the US Constitution at Article I, sec 9, says “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.”  I also remind the reader that since this is part of Article I, which is the Legislature’s Article, ain’t gonna be no suspending of habeas corpus without Congress’s permission. As I said, FDR got Congress’ permission.

One should not feel at ease. Congress can be stampeded into thoughtless action. In October 2001 it passed the disgusting Patriot Act. I guess the reps and senators were afraid of being called sympathetic to terrorists. In 2020, even our doctors were afraid of tolerating vaccine hesitancy.

The New Hampshire Bill of Rights, in its Article 34, says:  “No person can, in any case, be subjected to law martial, or to any pains or penalties by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the Legislature.” But that does not save a Granite Stater from federal martial law, as any conflict between a state’s constitution and the parchment gets resolved in favor of the parchment.

It is urgent to clarify to the public what the law says on martial law. It says no president can go it alone. I repeat Article I, sec 8, clause 15:  “The Congress shall have Power … to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

Congress can call forth the “National” Guard. Congress is the People. If a president wants to invoke martial law, he needs YOUR permission.

— Mary Maxwell’s website is ConstitutionAndTruth.com. Maxwell is the author of Prosecution for Treason and Keep the Republic, Kill the Takeover. She wants to hear from you at: MaxwellMaryLLB@gmail.com. There’s not much time left.


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