A Primer on Martial Law and Emergencies
From a Federal Perspective

    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.

    The statistics regarding COVID-19” are hyped by the Mainstream Media, and the real statistics are far different as shown by Jon Rappoport. But assuming the facts as presented by the media are correct, what may either the Federales or States do to remedy this problem?

    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.

Today, the Presidential authority to declare national emergencies is governed by 50 U.S.C. §1601, et seq. For emergencies having an origin in whole or in large part outside the United States, the  International Emergency Economic Powers applies. See 50 U.S.C. §1701, et seq.

President Trump’s Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, Proclamation 9994 of March 13, 2020, is posted on the Whitehouse website, and it is also published in the Federal Register, 85 FedReg 15337.

    III. States.

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. The below are links to a few states
’ laws regarding quarantines in the events of emergencies:

        Alabama:

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.

Alabama Code, Title 31, Chapter 9: Alabama Emergency Management Act of 1955.

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.

        Florida:

Florida Stat.  Title XVII, ch. 252: Emergency Management.

        Georgia:

Georgia Code, Title 38, ch. 3: Emergency Management.

        Tennessee:

Tenn. Code, Title 58, Ch. 2: Military Affairs, Emergencies and Civil Defense.

Tenn. Code, Title 68, Ch. 1, Part 2: Power to quarantine. 

        Texas:

Texas Health and Safety Code, Sec. 81.085 Area Quarantine. 

Texas Government Code, chap. 418: Emergency Management.

Tex. Health and Safety Code Sec. 508.003 Area Quarantine. 

Cases regarding the constitutional right to work and cases regarding the constitutional right to travel.