From the New York Times: Can Martial Law Happen in America?

An opinion offered by David French: 

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. . . Can an American president — or any other American leader — create a similar political emergency?

The short answer is no. The longer answer is yes — if a president (or a governor) exploits ambiguities in American law.

. . . Let’s deal with the short answer first. Unlike South Korea, the United States has no clear constitutional mechanism for a president to simply declare military rule. State governors do have the ability to declare martial law in the event of an emergency, but governors can’t abrogate the federal Constitution, and any declaration of state military control is subject to judicial review.

. . . The longer answer, however, is far less reassuring. While there is no constitutional mechanism for military control, history demonstrates that American leaders will sometimes press their war powers beyond the constitutional breaking point (while Roosevelt’s declaration of martial law in Hawaii was defensible, his internment of Japanese Americans was not).

Even worse, there is a statutory basis for military intervention in domestic affairs, and the statute — called the Insurrection Act — is so poorly drafted that I have come to call it America’s most dangerous law.

The Insurrection Act is almost as old as the United States itself. The law dates to 1792, and it permits the president to deploy American troops on American streets to impose order and maintain government control.

But the statute itself is terribly written. The first section isn’t problematic — it permits the president to deploy the military upon the request of a state legislature or governor, if the legislature can’t convene. That makes sense. If a governor has lost control, he should be able to appeal to federal forces for help.

The next two sections of the statute, however, are much worse. Section 252 of the act gives the president the authority to deploy troops domestically “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”

Section 253 has similar language, granting the president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.”

. . . But the Insurrection Act isn’t the only dangerously ambiguous and open-ended provision of American law that could expand the authority to use the military for domestic law enforcement. Presidents aren’t the only American leaders who can cause chaos, and a number of Republican governors are seeking to expand their own authority to use force.

Article I, Section 10 of the Constitution denies states the power to engage in war unless they are “actually invaded.” Article I, Section 9 protects the writ of habeas corpus (an ancient legal doctrine that allows an imprisoned person to petition for release) “unless when in Cases of Rebellion or Invasion the public safety may require it.”

Lincoln relied on Article I, Section 9 when he revoked habeas corpus during the Civil War, an obvious case of rebellion.

You might think that the meaning of these passages is clear, that an invasion is easy to define. Think, for example, of Russia’s invasion of Ukraine or of North Korea’s invasion of South Korea in 1950 — violent attacks that are intended to destroy or occupy sovereign nations.

Yet a number of red-state governors — including, most notably, Gov. Greg Abbott of Texas — have deemed the surge of migrants at the border an “invasion.” Texas used this purported invasion to justify placing barriers in the Rio Grande, although those barriers would otherwise violate federal law.