MartialLaw

I. Martial Law.

Too many have erroneous ideas about what is “martial law.”

An easily understandable case regarding this issue arises from the War of Northern Aggression. A man named Milligan and several of his compatriots were arrested by military officers for a conspiracy against the United States. They were tried before a military tribunal, convicted and sentenced to death. An excellent presentation of the facts regarding this case is posted on Wikipedia.

This case, Ex parte Milligan, 71 U.S. 2 (1866), establishes a very simple and rudimentary legal principle: if the civil courts are open and can operate in a jurisdiction, then martial law cannot prevail. One of Milligan’s lawyer at the Supreme Court was Jeremiah Black and reading his oral argument at the Supremes is very informative.

“Martial law” is anti-constitutional and has no foundation in the US Constitution. Martial law is simply “the law” of a military battlefield, where the only law that can exist is the law of war and military commanders. If a military unit is not in active combat on some soil of the United States of America against some enemy (like the Commies or Demoncrats), then “martial law” cannot be implemented and enforced. This is the substance of the American law regarding “martial law,” even though there are promoters of alternative but utterly baseless positions.

For those wanting a more detailed analysis, I suggest one of Dr. Edwin Vieira’s shortest presentation of this issue posted here.

II. Federal “Emergencies”.

During World War I, the Trading With Enemy Act (“TWE”), 40 Stat. 411, was enacted by Congress. This law plainly applied to “enemies” and “allies of enemies,” and citizens were expressly excluded from the definitions of these terms. This act applied in the United States, which was “deemed to mean all land and water, continental or insular, in any way within the jurisdiction of the United States.” Section 5 of this act authorized the President to perform certain acts regarding enforcement of it “during the war.” In 1933 during the beginning days of the FDR administration, FDR closed the banks. To give the President statutory authority to do so after the fact, Congress amended section 5 of TWE to permit the president to exercise his authority “[d]uring time of war or during any other period of national emergency declared by the President.” See 48 Stat. 1. It is this act that forms the foundation for federal “national emergencies.” TWE is currently codified at 50 U.S.C. §4301, et seq.

Pursuant to our American constitutional system that divides power and authority between the States and the United States, the “police power” is vested in the States and not the federal government. See Wilkerson v. Rahrer, 140 U.S. 545, 554 (1891) (the police power “is a power originally and always belonging to the States, not surrendered to them by the general government, nor directly restrained by the constitution of the United States, and essentially exclusive”); Union National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods & Sons v. Carl, 75 Ark. 328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655 (1915); Shealey v. Southern Ry. Co., 127 S.C. 15, 120 S.E. 561, 562 (1924) (“The police power under the American constitutional system has been left to the states. It has always belonged to them and was not surrendered by them to the general government, nor directly restrained by the constitution of the United States * * * Congress has no general power to enact police regulations operative within the territorial limits of a state”); and McInerney v. Ervin, 46 So.2d 458, 463 (Fla. 1950). “The police power is the power of the sovereign to legislate in behalf of the public health, morals or safety by general regulations”. People v. Rosehill Cemetary, 334 Ill. 555, 560, 166 N.E. 112 (1929); and Lawton v. Steele, 152 U.S. 133, 136 (1894).

Under our form of constitutional government, the “rights of the individual are not derived from governmental agencies, either municipal, state or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. The fewer restrictions that surround the individual liberties of the citizen, except those for the preservation of the public health, safety, and morals, the more contented the people and the more successful the democracy.” City of Dallas v. Mitchell, 245 S.W. 944, 945-46 (Tex.Civ.App.-Dallas 1922).

Lots of legislative acts have been held void as beyond the police power. See Dobbins v. Los Angeles, 195 U.S. 223 (1904)(ordinances challenged which prevented the business of making and selling gas to the people of the City); Smith v. Texas, 233 U.S. 630 (1914)(law that required freight conductors to have experience as brakemen was void); Adams v. Tanner, 244 U.S. 590 (1917)(law prohibiting employment agencies was void); Meyer v. Nebraska, 262 U.S. 390 (1923)(law forbidding teaching foreign languages in school was void); Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924)(bread weight restrictions held void); Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926)(law preventing use of “shoddy” in mattresses held void); Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418 (1927)(ticket broker price restriction held void); Fairmount Creamery Co. v. Minnesota, 274 U.S. 1 (1927)(statute prohibiting any person engaged in the business of buying milk and cream or butterfat to discriminate between localities by paying a higher price in one locality than in another after making due allowance for the difference in cost of transportation held unconstitutional); Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928)(state law restricted ownership of pharmacy to licensed pharmacists was beyond police power); State of Washington ex rel Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928)(law requiring consent of neighbors just to build home was void); and New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)(law restricting new ice business void).

Quarantines implemented to curtail the spread of diseases have been declared as valid exercises of the police power. At State Quarantine and Public Health Laws, there are posted links to the various state laws regarding quarantines. Further, the below are links to a few states’ laws regarding quarantines in the events of emergencies:

Alabama Code, Title 11, Article 5: Powers of Counties and Municipal Corporations as to Health, Sanitation and Quarantine.

Section 11-47-130 - Maintenance of health and cleanliness generally.
Section 11-47-131 - Powers as to health, sanitation and quarantine generally.
Section 11-47-132 - Provision for system of compulsory vaccination, etc.
Section 11-47-133 - Appropriation of funds for care of certain sick and wounded persons in municipal hospitals.
Section 11-47-134 - Establishment, aid, etc., of hospitals, poorhouses, etc., in counties; removal and detention of persons with contagious, etc., diseases.

Alabama Code, Title 16, Chapter 30: Immunization of School Children.

Section 16-30-1 - Immunization or testing for certain diseases.
Section 16-30-2 - Responsibilities of parents.
Section 16-30-3 - Exceptions to chapter.
Section 16-30-4 - Presentation of certificate upon initial entrance into school.
Section 16-30-5 - Rules and regulations.

Alabama Code, Title 22, Chapter 12: Quarantine Laws and Regulations.

Section 22-12-1 - Enforcement of quarantine.
Section 22-12-2 - State quarantine authority paramount.
Section 22-12-3 - Exercise of rights and duties by public health committees and officers.
Section 22-12-4 - Proclamation of quarantine by Governor.
Section 22-12-5 - Amendment of regulations and changes of territory.
Section 22-12-6 - Investigations; quarantine pending investigations.
Section 22-12-7 - Refusal of investigation by authorities outside state.
Section 22-12-9 - Duty of vessel master ordered to perform quarantine.
Section 22-12-10 - Unauthorized removal of vessel from quarantine.
Section 22-12-11 - Violation of regulations as to arriving vessels.
Section 22-12-12 - Proclamation of quarantine in county, city, or town.
Section 22-12-13 - Enforcement of local quarantine.
Section 22-12-14 - Quarantine of infected portions of county - Establishment.
Section 22-12-15 - Quarantine of infected portions of county - Enforcement.
Section 22-12-16 - Expense of enforcing local quarantine.
Section 22-12-17 - Report of local quarantine to state.
Section 22-12-18 - Quarantine of person coming from infected place.
Section 22-12-19 - Establishment of place of detention.
Section 22-12-20 - Attempted escapes and escapes from detention.
Section 22-12-21 - Supervision of public conveyances affected by quarantine; refusal of freight, etc.
Section 22-12-22 - Transportation of person or thing in violation of quarantine.
Section 22-12-23 - Free rides on public transports for quarantine officers.
Section 22-12-24 - Passing of quarantine lines by state quarantine officers and guards.
Section 22-12-26 - Arrests without warrants.
Section 22-12-29 - Affidavits by persons desiring to enter or remain in certain places.

Section 31-9-1 - Short title.
Section 31-9-2 - Findings and declarations of necessity; purpose of article and public policy.
Section 31-9-3 - Definitions.
Section 31-9-4 - State Emergency Management Agency; Director of Emergency Management.
Section 31-9-6 - Powers and duties of Governor with respect to emergency management.
Section 31-9-7 - Mutual interstate aid agreements and compacts.
Section 31-9-8 - Emergency powers of Governor.
Section 31-9-9 - Powers and duties of directors of local emergency management organizations as to mutual aid agreements.
Section 31-9-10 - Local emergency management organizations; emergency powers of political subdivisions.
Section 31-9-11 - Powers, duties, etc., of employees of political subdivisions rendering outside aid.
Section 31-9-12 - Reimbursement of expenses of operation of mobile support units of other states; operation of Alabama mobile support units in other states.
Section 31-9-13 - Orders, rules and regulations of Governor - Effect; distribution.
Section 31-9-14 - Orders, rules, and regulations of Governor - Enforcement.
Section 31-9-15 - Orders, rules, and regulations of Governor - Enforcement - Arrests without warrant.
Section 31-9-16 - Immunity of state, etc., from liability for torts resulting from emergency management activities; exemptions of emergency management workers from license requirements; powers, duties, etc., of emergency management workers.
Section 31-9-17 - Exemption from tort liability of persons granting license or privilege for use of real estate, etc., for shelters.
Section 31-9-18 - Governor, etc., may accept services, etc., from federal government, private persons, etc.
Section 31-9-19 - Political activities by emergency management organizations.
Section 31-9-20 - Employment of subversives by emergency management organizations; loyalty oath.
Section 31-9-21 - Compensation insurance for emergency management workers and trainees.
Section 31-9-22 - Penalties.
Section 31-9-23 - Article to be liberally construed.
Section 31-9-24 - Regular and emergency appropriations; state grants to political subdivisions.

Reims v. State, 17 Ala. App. 128, 82 So. 576 (1919): regulations were void for nonconformity to other sections of law authorizing regulations; the board, under such statutes, having the power merely to make rules and regulations affecting “quarantined live stock” or “quarantined places.”

State v. Vaughan, 30 Ala.App. 201, 4 So.2d 5 (1941): concerned a regulation promulgated by the Commissioner of Conservation under the authority of the legislation creating the State Conservation Department. That legislation had authorized the Commissioner to “make reasonable rules and regulations ... for the best interest of the conservation, protection and propagation of ... fish ... which rules and regulations shall have the force and effect of law....” Under that statutory authority the Commissioner published the following rule: "The sale, offer or possession for sale of any game fish in the State of Alabama, regardless of where taken is hereby prohibited.” Court held that this rule went beyond the power of the Commissioner and constituted an unlawful exercise of legislative power. In reaching that decision, Court recognized the absence of any “universal formula for determining in all cases the power which must be exercised by the legislative body itself, each case” being “controlled by the application of the general principle to a given situation.” “Our form of government will not admit of a head of a department prohibiting the sale or possession of game fish, taken without the State. The Legislature, under our form of government is the only body that can exercise the police power of the State to that extent.”

Federation of City Employees v. Arrington, 432 So.2d 1285 (Ala. 1983): mayor’s executive order was entirely overbroad: “Mayor Arrington exceeded the bounds of his authority as mayor in issuing the executive order”.

State v. Marana Plantations, 75 Ariz. 111, 115, 252 P.2d 87 (1953): state health regs.
“We think that the attempt by the legislature to make it the duty of the board to ‘formulate general policies affecting the public health’ and to give the board unrestrained power to regulate sanitation and sanitary practices and promote public health and prevent disability and mortality is a constitutional relinquishment of its legislative power and to such extent is violative of constitutional principles, and the so-called Sanitary Code applicable to agricultural labor camps is void.”

“In short, arbitrarily and within the declaration, not of the legislature, but of the commissioner, no burden whatever may be imposed upon one institution, while the other, in obedience to this law, may be subjected to a most onerous and even destructive expense. The legislature, as we have said, may require the owners of factories and workshops to put their buildings in proper condition as to sanitation, may require them to provide reasonable safeguards against danger for the operatives, but it may not leave the question as to whether and how these things shall be done or not done to the arbitrary disposition of any individual.”

People v. Lange, 48 Colo. 428 (1910): statute was unconstitutional in so far as the legislature delegated to the board the power to declare, by rules and regulations, what acts should constitute a misdemeanor.

Conner v. Joe Hatton, Inc., 216 So. 2d 209 (Fla. 1968): provision prohibiting “unfair trade practices” as related to celery and sweet corn markets lacked sufficient guidelines to be a constitutional delegation of authority.

Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978):

Howell v. State, 238 Ga. 95, 230 S.E.2d 853 (1976): legislative enactment making criminal a violation of “any of the rules or regulations promulgated by [an executive branch] commission” was held to be an improper delegation of legislative power.

Abbott v. State, 106 Miss. 340, 63 So. 667 (1913): prosecution for violating quarantine re cattle; “there is nothing in the act requiring persons to dip their cattle. This omission, inadvertent or intentional, is unfortunate from an economical standpoint, which can be corrected by the legislature should the legislature desire to broaden the law on this subject. It follows that appellant has not violated the law as written.”

Gate City S & L Association, 182 Mont. 361, 597 P.2d 84 (1979): law directed the Department of Business Regulation (now Department of Labor and Industry) to rule on merger applications by savings and loan associations but provided no standards or guidelines either expressed or otherwise ascertainable. There was nothing in the statute to enable the agency to know its rights and obligations, and therefore it was an unconstitutional delegation of legislative power.

Guillou v. Division of Motor Vehicles, 127 N.H. 579, 503 A.2d 838 (1986): holding unconstitutional statute that authorized the Director of Motor Vehicles to suspend or revoke a driver’s license “for any cause which he may deem sufficient” because the statute failed to identify a “general” policy or to articulate “specific standards” for agency action.

Boreali v. Axelrod, 517 N.E.2d 1350, 1353-56 (N.Y. 1987): “We hold that the Public Health Council overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public.”

DePetrillo v. Coffey, 118 R.I. 519, 376 A.2d 317 (R.I. 1977): control over parking was legislative power which could not be delegated to police chief.

Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (1920): cattle dipping requirement for eradication of fever ticks. Held unlawful delegation of legislative power.

Stephensen v. Wood, 35 S.W.2d 794 (Tex. App. 1930): fishing restriction. Agency cannot make penal law: so much of the act under consideration as attempts to make it a penal offense for one to have in his possession seines, nets, or trawls on the waters mentioned in section 1 thereof, is unconstitutional and void.

Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997): “Legislature made an unconstitutionally broad delegation of authority to the Foundation, a private entity, thereby violating Article II, Section 1 of the Texas Constitution.”

Chapel v. Commonwealth, 197 Va. 406, 89 S.E.2d 337 (1955): striking down statute that gave Dry Cleaner’s Board authority to “promulgate such rules and regulations as it deemed necessary” to regulate the business because legislature failed to fix a standard to direct and guide the Board in rulemaking or to make findings that regulation required control by agency with broad discretionary powers.