Necessary Necessity: Courts’ Historical Assessment of the Condition Precedent for Martial Law

Abstract

In 2020, three distinct crises—a global pandemic, civil unrest following the murder of George Floyd, and a presidential election challenge—each led to national discussions of “martial law” as a possible response. In fact, sitting members of Congress and key presidential advisers recommended martial law to the sitting President of the United States, with some discussions apparently occurring in the Oval Office. When these crises arose, no President, governor, or military commander had declared martial law in over half a century, but then suddenly three very different crises prompted national discussion of martial law. The cause, nature, and effects of each of these crises were different, as were the existing legal authorities available for utilizing military forces to address them.

The diversity of situations that prompted national contemplation of martial law in 2020 warrants a contemporary review of courts’ treatment of the nearly universally accepted required condition precedent for the imposition of martial law and military actions taken thereunder: necessity. This article identifies and analyzes federal and state courts’ historical assessments of the existence of necessity sufficient to justify martial law, categorizing the discussion in the four situations most commonly claimed as necessitating martial law: 1) war; 2) insurrection or disorder; 3) closure of civil courts; and, most dangerously, 4) executives’ dissatisfaction with another government entity’s actions.

Keywords: martial law