What is martial law?

Legal 101

Concerns over martial law arrived early on in the COVID pandemic. At first, these largely revolved around quarantine efforts. At the time, many people worried about the potential for the military or federal government to take over the pandemic response. 


Since then, George Floyd’s death and the related civil unrest have shifted the public narrative on this issue — especially in light of violent federal intervention at several protests. Suddenly, concerns about martial law feel far more prescient.




President Trump accelerated these concerns in response to the civil unrest in several states across the country, stating that he would “deploy the United States military and quickly solve the problem for them.” Furthermore, sources suggest that Trump strongly considered invoking the Insurrection Act to justify use of the National Guard within U.S. borders.


Following the president’s statement and related rumors, terms such as “martial law” began to trend on social media. But are these concerns realistic? 


What is martial law?

At its most basic level, martial law involves a military takeover of functions typically handled by civilian government agencies. Technically allowed by the Constitution in the event of an invasion or rebellion, martial law frees the president from restrictions typically placed on the federal government’s executive branch.


The President’s authority for intervening in regional affairs

Traditionally, military authority over local government functions has been limited to natural disasters, with the National Guard playing an integral role in distributing food and emergency supplies. Experts disagree, however, on the extent to which the military can get involved in other situations.


The Foreign Policy Research Institute’s Dov Zakheim explained recently that martial law is essentially illegal in the United States. He referenced the Posse Comitatus statute, which, in most cases, bars military intervention in law enforcement proceedings.


The Posse Comitatus Act may limit military involvement, but, as President Trump asserts, the Insurrection Act provides some leeway, especially following its 2006 expansion. In this update, Congress authorized the president to deploy troops upon determining that “constituted authorities of the State or possession are incapable of maintaining public order.”


As skeptics point out, the Insurrection Act can only be called upon in, as its name suggests, the event of an uprising — or, at minimum, following widespread domestic unrest. Still, given the recent upheaval, many worry that martial law remains a real possibility, regardless of whether it’s technically authorized.


Civilian rights under martial law

Under martial law, fundamental rights such as freedom of speech and freedom from unreasonable search and seizure could be suspended. This could limit U.S. residents’ ability to speak out if they deem the very act of declaring martial law illegal. 


Likewise, civilians could be arrested for infractions that would not, under ordinary circumstances, warrant detention. Those defying regulations under martial law could even be subject to military tribunals.


Given the harsh consequences of martial law at the civilian level, fears of this extreme action warrant consideration. While many experts maintain that a military takeover remains unlikely during an election year, it’s important to understand its potential in times of unrest.