by Noam Benavi
On March 18, 2020, as COVID-19 blazed a trail across the State of California, Governor Gavin Newsom announced preparations to enact statewide martial law if the circumstances in the coming weeks demanded it.[1] As the dominoes of modern civil society toppled across America, the prospect of martial law loomed ever larger. But what exactly would this have entailed? Since martial law replaces civil rule with military authority, certain civil liberties such as freedom of association and freedom of movement lose their constitutional teflon.[2] Martial law, constituting an extreme amalgamation of government powers in the hands of the military, has been used in exceedingly rare circumstances, and it would likely be opposed by a high proportion of civilians.[3] Still, this rarity in itself does not rule that the imposition of martial law constitutes a good or bad decision—only the context of the particular emergency situation can do that.
Governor Newsom, even at the height of the first wave in April, made the correct decision in refusing to declare martial law. Based on the statutory phrasing of martial law provisions and the context of past emergency executive actions, martial law was and continues to be a legally dubious response to the ongoing crisis.
Part of the difficulty in determining what exactly justifies the invocation of martial law lies in the lack of a consistent, specific checklist of conditions that must be met.[4] Even the Supreme Court has admitted that “of necessity (martial law) is arbitrary.”[5] Thus, the invocation of martial law is unsettlingly dependent on the biased, conflicted wills of presidents and governors. Fortunately, some statutory measures chip away at leaders’ monolithic power in this arena. The Code of Federal Regulations states that “martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration.”[6] By mandating necessity as a perpetual precondition to the legal implementation of martial law, the CFR ideally eliminates the possibility of declaring martial law frivolously or against the public interest. But the meaning of words can easily be manipulated. “Necessity” is not an intrinsic class of conditions that demand a response—it is whatever a president or governor claims it is. So in making an argument for or against the invocation of martial law, one must also define “necessity” and defend their definition. I define “necessity” as a situation where the governor or president can show that not involving the military will constitute a direct harm to Americans and where involving the military will directly mitigate this harm. Under this definition, a scenario where civilian institutions are struggling but still able to operate would not qualify as necessity, even if the military could do the job more efficiently. If the military could do in a day under martial law what would take civilian groups months, this is not a direct harm but rather the delay of an eventual benefit.
The strictest standard is the best standard; because martial law is not a constitutionally defined condition, its implementation should be considered with the utmost caution. The legal community generally accepts that martial law is lawful because the constitutional system must contain within itself all that is essential to its preservation, which guarantees the occasional, legitimate existence of some “extra-constitutional” powers.[7] Still, these powers must be considered as a sphere of executive action separate from normal constitutional conduct, so if they are ever invoked, the potential non-constitutionality of their exercise is highlighted and reviewed with the increased level of scrutiny they deserve. With the background conditions for martial law established, we can now apply them retroactively to the state of the coronavirus pandemic in April. We know that at the time of Newsom’s declaration of openness toward martial law, organizations such as the WHO and CDC reported a sub-optimal inventory of personal protective equipment and that health workers and hospitals were overwhelmed.[8] However, we cannot overlook that American civilians themselves had and continue to have the power to significantly curb the root issue of transmission. Even if the eventual total of infected people is not significantly reduced, implementing strict self-quarantine measures and practicing social distancing can keep the density of new cases below the capacity of the healthcare system.[9] If this could be achieved, then there is no justification for introducing military rule.
The question of the necessity of martial law during the first wave became complicated once we realized that this individual-responsibility approach would not happen. We realized, at best, most but not all Americans would follow experts’ advice, and at worst, a significant number would ignore them completely. However, there are still measures governors or presidents could and must take before declaring martial law. President Trump, as well as the vast majority of states, had not yet issued stay-at-home orders—though Newsom’s order in California was one exception. Such an order, as well as the local enforcement ordinances that preceded statewide mandates, are examples of civil disorder statutes that curbed the spread of coronavirus[10] without involving the military. Another step executive politicians could have taken was the criminalization of all conduct currently advised against by the CDC and major health organizations, such as not wearing masks in public.[11] If the biggest concern of executive politicians is curbing social interaction, then local police and federal agencies with national security concerns, such as the FBI and CIA, already have many of the resources needed to enforce these new laws.[12] Unlike the military, which is a constitutional construction,[13] police and federal agencies were founded later specifically to address domestic concerns. It does not seem, then, that the first wave of the coronavirus necessitated military involvement.
But how can we be completely sure that military involvement in the coronavirus isn’t necessary? It is useful to discuss theoretical implementations of martial law, but with so little detail of its built-in instructions for implementation, it is also necessary to examine the circumstances of previous executive actions and their corresponding Supreme Court cases. By comparing these situations to the current situation, we can derive some common factors of a successful implementation of martial law. The first and arguably most famous of these instances occurred during the Civil War, when Secretary of War Edmund Stanton issued an order suspending the writ of habeas corpus for “persons arrested for disloyal practices.”[14] Under this order, Indiana lawyer and Confederate sympathizer Lambdin P. Milligan was arrested for treason and sentenced to death by a military commission. Milligan appealed this sentence, claiming that as a private citizen, the military had no disciplinary authority over him. In Ex Parte Milligan, the Supreme Court ruled that using military tribunals to try civilians was unconstitutional.[15] Specifically, the majority disagreed with how Milligan was tried due to the fact that during this period, the civilian courts were still operational.[16] This opinion shows that from the genesis of the discussion regarding extra-constitutional military actions (of which martial law is an example), rulings and analysis are strictly tied to the precondition of necessity for the invocation of military rule doctrines. In both this case and the April phase of the coronavirus pandemic, civilian solutions were still, to some extent, available. However, in the Milligan case, the issue of necessity was preventing and rooting out treason, which is more directly related to traditional military functions than the recent issue of necessity: curbing the spread of disease. This difference distinguishes the recent crisis of the first wave as a weaker plea for martial law and allows us to assume that using the standard of strict necessity established in Ex Parte Milligan, the Supreme Court would reject the April phase of the crisis as a suitable precondition for martial law.
The martial law debate was resurrected with a vengeance in 1942, when President Roosevelt relocated and interned thousands of Americans solely based on their Japanese descent. Though the president’s action did not constitute a declaration of martial law, it still represented a constitutionally dubious executive action.[17] In one of the most infamous decisions in American history, the Supreme Court ruled in Korematsu v. United States[18] that such an action was constitutionally permissible. The majority decision leaned heavily on the circumstances of war, reasoning that in the arena of war-making, the Court should not substitute its judgment for those who have been authorized by the Constitution to make such decisions.[19] This decision is key to our investigation for multiple reasons. First, it implies that there are two separate spheres of permissible executive action: wartime and non-wartime. In this exclusive and unqualified binary, executives presiding over non-military emergency situations possess the same constitutional powers as they would have in an ordinary situation. As frightening as the pandemic was in its early stages, it in no way resembled a war, and the use of the pandemic as a justification for martial law would thus be subject to increased scrutiny. Even though the president does possess some emergency powers that are not war related, these powers do not involve military action. When the repercussions of Korematsu are taken into account, the evidence against implementing martial law in April becomes even more damning, because in retrospect, the internment of Japanese Americans did little to protect national security but patently violated the constitutional rights of thousands of innocent Americans. Korematsu shows that even if the Supreme Court decides an emergency meets the necessity threshold, giving such broad power to the executive can go horribly wrong and ultimately seem like an outright abuse of power.
Now that we have examined the applicability of martial law to coronavirus from past and present, statutory and practical angles, we can see that however you analyze the situation, the result will be the same. The early coronavirus crisis failed to meet the necessity threshold established in Ex Parte Milligan, since the institutions on the front lines were better equipped to handle the crisis than the military, and even if this were not the case, giving the military extra-constitutional powers even in the most dire emergencies can have long-lasting repercussions, as shown by Korematsu. In April, we did not know the extent of the damage the coronavirus would cause, nor did we know how long the pre-lockdown, semi-quarantined state would last. But in retrospect, we could have rested near completely assured that soldiers would not be patrolling the streets any time soon.
[1] Associated Press, California Readies For Worst-Case Scenarios As Virus Spreads, KPBS (March 18, 2020), https://www.kpbs.org/news/2020/mar/18/california-readies-worst-case-scenarios-virus-spre/.
[2] Danielle Zoellner, Coronavirus: California prepared to enact martial law if its a ‘necessity’, governor says; ‘We have the ability to do martial law ... if we feel the necessity,’ Governor Gavin Newsom says, Tʜᴇ Iɴᴅᴇᴘᴇɴᴅᴇɴᴛ (March 18, 2020), https://advance-lexis-com.ezproxy.lib.utexas.edu/api/document?collection=news&id=urn:contentItem:5YFS-N4J1-F021-648S-00000-00&context=1516831.
[3] Kirk L. Davies, The Imposition of Martial Law In The United States, Aɪʀ Fᴏʀᴄᴇ L. Rᴇᴠ., 49, 67 (2000).
[4] See Charles Fairman, The Law of Martial Rule, 22 Aᴍ. Pᴏʟ. Sᴄɪ. Rᴇᴠ. 591 (1928); See also Aʟʙᴇʀᴛ Dɪᴄᴇʏ, Iɴᴛʀᴏᴅᴜᴄᴛɪᴏɴ ᴛᴏ ᴛʜᴇ Sᴛᴜᴅʏ ᴏғ ᴛʜᴇ Lᴀᴡ ᴏғ ᴛʜᴇ Cᴏɴsᴛɪᴛᴜᴛɪᴏɴ 283, 290 (1923).
[5] United States v. Diekelman, 92 U.S. 520, 526 (1876).
[6] Martial Law, 32 C.F.R. § 501.4 (2006)
[7] Fairman, supra note 4, at 604.
[8] Zoe Schlanger, Begging for Thermometers, Body Bags, and Gowns: U.S. Health Care Workers Are Dangerously Ill-Equipped to Fight COVID-19, TIME (April 20, 2020), available at https://time.com/5823983/coronavirus-ppe-shortage/.
[9] Flatten the Curve, Flatten the Curve. Save Lives, Nᴀᴛɪᴏɴᴀʟ Iɴsᴛɪᴛᴜᴛᴇs ᴏғ Hᴇᴀʟᴛʜ (Dec. 2, 2020), https://www.flattenthecurve.com/.
[10] Solomon Hsiang, The effect of large-scale anti-contagion policies on the COVID-19 pandemic, Nᴀᴛᴜʀᴇ (June 8, 2020), https://www.nature.com/articles/s41586-020-2404-8.
[11] Centers for Disease Control, Use Masks to Slow the Spread of COVID-19, Cᴇɴᴛᴇʀs ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ ᴀɴᴅ Pʀᴇᴠᴇɴᴛɪᴏɴ (Feb. 16, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
[12] FBI Jobs, Special Agents: The Face of America, Fᴇᴅᴇʀᴀʟ Bᴜʀᴇᴀᴜ ᴏғ Iɴᴠᴇsᴛɪɢᴀᴛɪᴏɴ (2020), https://www.fbijobs.gov/career-paths/special-agents.
[13] U.S. Const. art. I, § 8, cl. 12.
[14] See Ex parte Milligan, 71 U.S. 2 (1866). [15] See id.
[16] Id.
[17] See e.g., Dean M. Hashimoto, The Legacy of Korematsu v. United States: A Dangerous Narrative Retold, 4 UCLA Asɪᴀɴ Pᴀᴄ. Aᴍ. L. J, 72 (1996).
[18] 323 U.S. 214 (1944).
[19] See id.