Will the Coronavirus Lead to Martial Law?

In recent months, a little known concept that we typically associate with political unrest in other countries has come to the forefront here in the United States: martial law. As the coronavirus pandemic has worsened and state leaders have enacted limits on public gatherings and businesses in the name of public safety, some people fear that martial law may be enacted—and they wonder how it will impact them if so.

Historically in the U.S., there has never been a declaration of martial law because of a public health emergency. But is it possible or likely, and what can you expect? We have answers below.

What is martial law?

Martial law is when a nation’s military assumes the responsibilities of the local, state or federal government in a city, state, region or country. The National Criminal Justice Reference Service defines martial law as follows:

Martial law is closely related to the legal concept of habeas corpus, which essentially grants all citizens the right to a hearing and trial before the judicial system. Martial law may suspend the writ of habeas corpus if civil courts cannot function, which is possible under the U.S. Constitution (Article 1, Section 9):

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.

Naturally, this gives rise to the questions like what is considered “cases of rebellion or invasion,” and how does the government determine if “public safety may require it”?

When has martial law been declared in the past?

One way to get a better understanding of the circumstances that can give rise to a martial law declaration is to look at examples in American history. For example, riots and protests arising from a number of past work strikes and unionization movements have resulted in local or regional martial law being enacted.

West Coast Longshoremen’s Strike (1934)

Take the example of the 1934 West Coast Waterfront Strike. Also known as the West Coast Longshoremen’s Strike, this 83-day period of confrontation and protest began on May 9, 1934, when longshoremen in every U.S. West Coast port walked off the job in order to support unionizing the industry. Several days later, sailors joined the strike.

On May 15, things escalated when strikers attacked the stockade housing strikebreakers and one of the strikers was killed by police (and others injured).

Resent and unrest simmered for weeks until on July 3, fights broke out at the Port of San Francisco (along the Embarcadero) between police and strikers. Then, on Thursday, July 5th—known as “Bloody Thursday”—the tension between strikers and police boiled over. In the end, 2 more strikers were killed and thousands marched through the streets of San Francisco.

On July 17th, the California National Guard was called in with machine gun-mounted trucks to help control “vigilante raids.”

West Virginia Coal Wars (1920-1921)

When coal miners in Mingo County, West Virginia went on strike, Governor Cornwell declared martial law in the entire state and dispatched federal troops to “keep the peace” and prevent assembly of any kind. The federal officers imprisoned so many union miners that the jails filled up and some miners had to be released. These miners were arrested, jailed and released without any judicial hearing or trial.

Other examples of martial law in the U.S.

Similar instances of local or state leaders declaring martial law during strikes, riots, protests and natural disasters have been repeated several times in U.S. history. Most famously:

• Battle of New Orleans of 1815
• Great Chicago Fire of 1871
• San Francisco earthquake of 1906
• Colorado Coalfield War of 1914
• Omaha race riot of 1919
• Lexington riots of 1920
• Following the Japanese attack on Pearl Harbor

It’s important to note that the deployment of military troops on U.S. soil doesn’t necessarily mean that martial law has been declared. The Supreme Court has ruled that one of the key factors that must be present in order to enact martial law is that the civil courts cannot function. So even though the military was called in to help local law enforcement in many past historical events, such as the Whiskey Rebellion of 1791 and the Civil Rights Movement, these didn’t meet the standards of martial law.

Examples of martial law in other countries

Around the world, martial law has been declared throughout history across all reaches of the globe. Some of the most well-known examples of martial law in world history include China’s Tiananmen Square protests of 1989, post World War II reconstruction in Germany and Japan and the martial law which kept Philippines dictator Ferdinand Marcos in power for 14 years.

Here’s a list of countries (other than the U.S.) that have imposed martial law—and in some cases, when martial law was last enacted:

Who can declare martial law?

Governors and local leaders can impose martial law in their states or in local communities.

It’s not exactly clear who has the power to declare a national martial law in the United States, since martial law isn’t specifically addressed in the U.S. Constitution and the Supreme Court has never expressly ruled on whether the federal government is authorized to do so. However, it is generally believed that the President and Congress both have the power to declare martial law if certain conditions are met. In 1878, Congress passed the Posse Comitatus Act banning U.S. military involvement in domestic law enforcement without congressional approval.

What’s more, nearly every state has a constitutional provision determining in which circumstances the government may impose martial law.

Will coronavirus lead to medical martial law in the U.S.?

In light of the COVID-19 pandemic and ensuing Stay-At-Home orders, many people speculated if medical martial law might be enacted to help quell the public health emergency and “stop the spread.” In fact, the rumor that the U.S. military might implement martial law has become so widespread that the Department of Defense put out a bulletin dispelling this rumor on their Rumor Control page.

Martial law can only be enacted when civil courts and government institutions have failed. In the case of pandemic-related shutdowns, the civil government has the power and authority to issue restrictions on public gatherings and travel if the aim is to protect the general public. Therefore, it’s within the local and state government’s domain to place limits on social gatherings, restrict business services and close schools.

So here in Georgia, while Governor Kemp has the authority to declare martial law in the state, he has not done so yet and it’s unlikely that he would. To date, there has been no military involved in Kemp’s orders.

Who’s liable if I am injured during martial law?

While life would certainly look different if martial law were enacted, undoubtedly people would still be injured in car accidents and other personal injuries—both in and out of the workplace. If you were hurt on the job or due to someone else’s negligence during martial law, you would still have the same rights you have now to get financial compensation for your injuries and property damage.

One difference that might arise is if you are injured or harmed by the military during martial law, in which case you might be able to file a claim against the military. The only exception is that members of the military cannot sue the military for injuries but instead must go through an internal process. However, civilians, military retirees, contractors and dependents are eligible to sue the military.

If you are not a military member and wish to sue the military, then you would need to file a claim against the military, just like you’d file an insurance claim against a private civilian. Generally, you have only 2 years from the date of the accident or injury in which to file a military injury claim.

What would the legal system be like under martial law?

Under martial law, the military would likely enact curfews and suspend civil law and civil rights, which would be replaced with a military tribunal court system. This would mean that civil courts would effectively close, among other things.

For example, when martial law was enacted in Hawaii following the Japanese attack on Pearl Harbor, civilian courts were closed and those brought before the tribunal were not entitled to attorney representation. If penalized in military court, a person was fined, imprisoned and/or forced to donate blood.

As for how martial law would impact the workers’ compensation system, it’s impossible to know for sure since the last time martial law was enacted on a national scale was during the American Civil War, which predates the modern workers’ compensation system.

Fortunately, it is extremely unlikely that we will have to experience martial law as a result of the coronavirus.

More information about martial law and coronavirus