A Primer on Martial Law and Emergencies
From a Federal Perspective
(updated Dec. 9, 2020)
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
, 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
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
law,” even though there are promoters of alternative but utterly
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 “
are hyped by the Mainstream Media, and the real statistics are far
different as shown by Jon
But assuming the facts as presented by the media
are correct, what may either the Federales or States do to remedy
II. Federal “Emergencies”.
During World War I, the Trading With Enemy Act (“
was enacted by Congress. This law plainly
applied to “
enemies,” and citizens were expressly excluded from the
definitions of these terms. This act applied in the United
States, which was “
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 “
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 “
time of war or during any other period of national emergency
declared by the President.” See 48
. It is this act that forms the foundation for
emergencies.” TWE is currently codified at 50
Today, the Presidential authority to declare national emergencies
is governed by 50
, 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
, et seq.
President Trump’s Proclamation on Declaring a National Emergency
Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,
of March 13, 2020, is posted on the
Whitehouse website, and it is also published in the Federal
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
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
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
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:
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
Section 11-47-131 - Powers as to health, sanitation and quarantine
Section 11-47-132 - Provision for system of compulsory
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.
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.
Code, Title 22, Chapter 12
: Quarantine Laws and
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
Section 22-12-6 - Investigations; quarantine pending
Section 22-12-7 - Refusal of investigation by authorities outside
Section 22-12-9 - Duty of vessel master ordered to perform
Section 22-12-10 - Unauthorized removal of vessel from quarantine.
Section 22-12-11 - Violation of regulations as to arriving
Section 22-12-12 - Proclamation of quarantine in county, city, or
Section 22-12-13 - Enforcement of local quarantine.
Section 22-12-14 - Quarantine of infected portions of county -
Section 22-12-15 - Quarantine of infected portions of county -
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
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
Section 22-12-23 - Free rides on public transports for quarantine
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
Section 31-9-6 - Powers and duties of Governor with respect to
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 -
Section 31-9-14 - Orders, rules, and regulations of Governor -
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
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
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.
Texas Health and Safety Code, Sec.
Texas Government Code, chap.
: Emergency Management.
Tex. Health and Safety Code Sec.
posted on NWV has lots of great links to information about
Some relevant cases:
, 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.”
, 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
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”.
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.”
(1902) 135 Cal. 466, 67 P. 755: act to
provide for the proper sanitary condition of factories:
“The very idea that one man may be compelled to hold his life, or
the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the
essence of slavery itself.” (Yick Wo v. Hopkins, 118 U. S. 356.)
“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.”
“The manifest objection to this law is, that
upon the commissioner has been imposed not the duty to enforce a
law of the legislature, but the power to make a law for the
individual, and to enforce such rules of conduct as he may
prescribe. It is thus arbitrary, special legislation, and
violative of the constitution.”
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.
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.
v. Cross Key Waterways
, 372 So. 2d 913, 925 (Fla.
, 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
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 &
, 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.
, 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.”
, 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.
, 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.
Boll Weevil Eradication Found., Inc. v. Lewellen
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
, 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