Posted originally on Oct 21, 2024 By Martin Armstrong 

QUESTION: Marty, you are a constitutional scholar. I heard your father was quite brilliant and defended the Constitution, even going against McCarthy. I would like to hear your legal opinion on the topic: Can Biden declare Marshal Law like Zelensky and postpone the election?

DR

ANSWER: YES! The question of the constitutional status of martial law was raised during World War II by the proclamation of Governor Poindexter of Hawaii on December 7, 1941. He suspended the writ of habeas corpus and delegated to the local commanding General of the Army all his own powers as governor and also “all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed.” Two days later, the Governor’s action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

During the Civil War, when it was over, a divided Court, in the elaborately argued Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was truly an important case that effectively ruled that the use of military tribunals to try civilians when civil courts are operating is unconstitutional. This also means that during war and courts can be closed, the all bets are off. The Court’s opinion bearing on this point is the following:

“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”

Chief Justice Chase declared that Milligan’s trial was void because it violated the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege. He declared the belief that Congress could have authorized Milligan’s trial. The Chief Justice wrote:

“Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. . . .”

If we dive into this question, we find that two theories of martial law have been reflected in decisions of the Supreme Court. The first originated from the 1628 Petition of Right, 1628 that provides that the common law knows no such thing as martial law, Sterling v. Constantin, 287 U.S. 378 (1932).

“The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace.” Id. at 399–400.

In other words, martial law is NOT established by official authority of any sort. Therefore, martial law arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity, id/287 U.S. at 400–01.

Then, we have the second theory, which states that supreme political authority can validly and constitutionally establish martial law during wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden, 48 U.S. (7 How.) 1 (1849) that state declarations of martial law were conclusive and were NOT subject to judicial review, id/48 U.S. (7 How.) at 45.  The Court wrote:

“whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.”

In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state. Although the decision in the Prize Cases, 67 U.S. 2 Black 635 635 (1862), did not directly deal with the subject of martial law, it nonetheless gave national scope to the same general principle.

Therefore, reviewing these decisions, I would have to say that while it would be controversial, the government could call this a necessity if they can get Russia, China, North Korea, or Iran to declare war or attack before January 20th, and they could declare Martial Law.