– by J.D. Munch
Early in the Republican primary campaigns, Donald Trump felt like a historical curiosity, an oddity whose reality star brashness gave a new flavor to the usual political dynamic in which those campaigning simultaneously describe the U.S. as the greatest country in the world and a country with severe problems to which they uniquely hold the solutions. By the time Trump became the Republican nominee, though, an almost sinister autocratic feel seeped through the rhetoric. Part of this shift came from the sudden realization that a candidate underestimated throughout the process had suddenly emerged as a major party nominee. But part emerged when the negative tone of the campaign coalesced in a man emboldened by his successes to push further into the rhetoric of darkness. The moment of that success, the official nomination, was the time when Trump morphed: from Tom Riddle pushing boundaries and creeping out classmates to Voldemort demanding others to bow before him.
From that moment on, he has described the world as a dark, dangerous place in which to live. To hear him tell the tale, forces of evil lurk in the Middle East, Europe, Asia, Mexico, and urban centers in our country. And in a constant framing of himself in the role of savior, he continues to proclaim himself to be the only one capable of saving the United States from the horrors without and within. Those working to resist Trump have been pushed to a political minority trying to fight for a nationwide majority, trying to push back against the inexorable march to dismantle progress.
All of this might be written off as a depressing worldview, if not for two important facts. First, Trump has real power. He has the presidency, and no matter how many people claim he is an illegitimate president, he will remain so. Congress has Republican majorities in both chambers; so long as Trump supports the agendas of Republican leadership, they will never turn on him. And second, Trump’s messaging, through a combination of spin, partial facts, and outright fabrications, resonates with enough people to allow him to push an agenda that creates the potential for dangerous consequences for democracy itself.
During the Obama presidency, Republicans made wild accusations that President Obama believed himself a “dictator-in-chief,” that he was “ruling by executive fiat” and circumventing Congress in ways that undermined our Constitutional system. Now that Trump has grabbed the reins, his Executive Orders have pushed well beyond what we have seen before, in both number and scope. And based on his rhetoric and actions, both during the campaign and since taking office, the power grab looks only to be building in power. For the first time in memory, the specter of large-scale martial law looms as a real possibility. The resistance efforts mounted across the country must therefore remain vigilant against further movement toward a declaration of martial law, and work actively to prevent the conditions that would allow Trump to feel empowered to impose it.
How Martial Law Works in the United States
Commentators sometimes refer to martial law as “martial rule,” because it consists of a suspension of many laws and rights that exist under normal circumstances. Essentially, it exists as a rule by a military force overseen by the executive; it suspends certain constitutional rights and protections in the name of national security. It may suspend the right of habeas corpus, generally restrict for some people the right of access to the courts, or otherwise carve out exceptions to the Constitution or Bill of Rights. It arises in states of emergency, and on a national scale has only been attempted in relation to national defense, usually in relation to wartime situations.
For those seeking to resist Trump’s efforts to consolidate power, some consolation comes from the way the Supreme Court has treated martial law when presidents have sought to impose it. Trump’s admiration of Lincoln may be telling, as he was the first President to declare martial law; Lincoln suspended habeas corpus in 1862 through the end of the Civil War, with congressional approval. Truman ordered the Secretary of Commerce to take possession of United States steel mills to prevent a national strike during the Korean War. Governors have declared martial law in states to combat specific problems they faced.
In each of these instances, a common theme emerged: the executive has the power to direct a response to threats to the safety of our country. If the nation faces imminent danger, we vest authority in the President to respond immediately to that threat, rather than to wait for the legislative process, with all the deliberation and debate it requires. The instances in which it has been invoked demonstrate the importance and immediacy threats must take. Perhaps more importantly, they demonstrate the severity of the declaration. The constitutional rights we take for granted in most circumstances may disappear for a time when martial law is declared. For the resistance movement, this represents the greatest threat we might envision emerging from a Trump presidency: a unilateral presidential declaration that our rights no longer apply.
How Trump Path Would Operate
The concern we face is more than the looming, abstract right for the President to declare an emergency. When we look at the rhetoric, we see a President already speaking as though the world is in dire straits. He has painted for us his “us against the world” vision, in which the United States can trust no one, and the voices within that oppose him and his agenda are “fake,” if not treasonous. He verbally attacks enemies (save Russia) and allies alike, and proclaims that we must act now, without deliberation.
In fact, here we begin to see how the path toward a declaration of martial law might unfold. The first step is to establish his vision of the world as the official, accepted narrative. If pesky things like facts interfere with this vision, the response from the Trump White House is to undermine facts themselves. Declarations that we live in a post-truth world, claims from Trump supporters like Newt Gingrich that what people feel is more important than what might be factually true, describe well the full assault on truth that Trump has pursued. He sends a press secretary to declare his inaugural crowd the “biggest ever,” when a simple Google search can demonstrate it untrue. He makes up facts daily, or cites snippets of stories from Fox News as not only gospel, but as representative of far more dangers than are even reported. He proclaims that terror attacks go unreported, then when pressed for evidence casually provides an extensive list of attacks that lingered in the news for weeks at a time when they happened.
But there is more. The Trump resistance can point to news articles that lay out the facts that rebut every false story. So the next step is also underway: actively undermining the reporting by those who dare write stories inconvenient to, or unfriendly toward, the President. Therefore, every time an unflattering story emerges, the cry of “fake news” peals out from the White House—from Trump himself or from his surrogates and spokespeople in the White House and in right-wing media outlets. On February 24, he even excluded several media outlets from a closed-door press briefing, in an unprecedented move that favored media outlets that have provided coverage more friendly to his positions and presidency.
The move does not come without historical representation. In Germany in the 1930s, the Ministry of Public Enlightenment and Propaganda controlled what news stories could be published to help the Nazi party’s propaganda and misinformation campaigns. Official narratives became the only legal sources of information, a unified official message that limited voices of dissent and cleared the way for one of the darkest periods in our world’s history.
Here, Trump faces resistance in many corners of the media. Conservative outlets like Fox News (through Shepard Smith and Chris Wallace) and the Wall Street Journal have pushed back to some extent on Trump’s media attacks. A sense of unease is building, and camaraderie among reporters and journalists creates an obstacle. Still, Steve Bannon has gone on record saying the administration will be fighting battles every day against the media, and every combative news conference, every tweet and seemingly uncontrolled assault has pushed in the direction of turning his supporters against the voices of resistance and toward an official narrative anchored not to facts, but to fear and emotion.
That fear also serves a purpose. For martial law to take hold with legal effect, Trump needs a declaration of emergency. The source of that emergency could be virtually anything: ISIS, nuclear-capable enemies, allies that oppose the President, or protestors and rioters within the United States. When he declares that our major cities are disaster zones, that, too, is a power grab. When he declares the deportation efforts a military operation, when he declares conflicts rules do not apply to him, when he seeks to unilaterally stop lawfully-admitted foreign nationals from entering the country, these are all efforts to define, expand, and consolidate power. And if he is able to gain a greater foothold, it will become all the more difficult to resist Trump’s efforts to take control of more and more of the country.
This does not relate solely to our borders and immigrant populations. Trump’s rhetoric of doom expands into American cities as well: Chicago, Atlanta, Philadelphia, and others have served as fodder for the narrative that our inner cities are “war zones.” Crime does occur in cities, to be sure, and claiming that any part of the country exists as a utopian dreamland undermines anything else you may try to say. But the singling out of urban areas, with military-laden rhetoric, suggests another disturbing possibility: the suspension of key rights in areas that happen to vote for Democrats in most elections. The President, with a declaration of emergency supported by Congress, could disrupt areas where the most potential for resistance to his dangerous policy ideas exists. His recent moves to open private prisons for more business, particularly with his proclivity for involving himself more in the private sector than most presidents would consider appropriate, opens up disturbing possibilities for the crushing of those who would push back against him.
In everything the Trump administration has done and said, we can see the groundwork for what might become a state of constant war in our government—and with it, a declaration or quiet assumption of martial law in the United States. Any resistance efforts should focus on derailing this train before it reaches its destination, because the fight will only become more difficult if Trump can reach that point.
Limitations on Presidential Power to Declare Martial Law
So how do we resist Trump in the event he attempts to take the next step? Fortunately, the courts still have something to say about this. In two critical Supreme Court cases, the Court helped define both the circumstances in which the President can declare martial law and the limitations of that power. The opinions, both majority and concurring, may prove critical in establishing the grounds to resist the increased drive for power that the President continues to demonstrate.
In 1864, President Lincoln ordered James Milligan, a lawyer sympathetic to the confederate cause, to be tried by a military tribunal, under the reasoning that the country was still under martial law and thus he had authority to do this. Milligan was sentenced to be hanged, and appealed the decision up to the Supreme Court. In ex parte Milligan, the Court overturned the conviction, rejecting the government’s argument. Here, the Civil War was still ongoing, but the Court reasoned that because Milligan’s alleged offense was not in any way connected to the military, the declaration of martial law could not justify trying him under a military tribunal. Martial law must be limited to the situation for which it was implemented, and the Courts retain jurisdiction over civil and criminal cases.
In Youngstown Sheet & Tube Co. v. Sawyer, the Court faced the question of whether the Truman administration’s takeover of steel mills to keep them running during the Korean War was a justified and allowed exercise of executive power. Here there was not a declaration of martial law, but a similar exercise of power in the name of the national defense. The Court found that for the President to exercise power, it must come either from the Constitution or an act of Congress, and lacking either of those, there was no authority for Truman to order the seizure of the mills. The more enduring instruction, though, came from Justice Jackson’s concurring opinion, which identified three levels of power the President could possess in extraordinary circumstances, absent clear Constitutional authority:
The power is greatest when Congress authorizes it specifically—as Congress did for suspension of habeas corpus during the Civil War.
The power is lesser, but may still exist, when Congress is silent. If there is no law that specifically authorizes or denies an exercise of power, the President has authority, but subject to more scrutiny from the courts.
The power is weakest when a law exists that specifically denies a power to the President. Under those circumstances, only the power specifically given by the Constitution exists—and even that is balanced against the power given to Congress.
Against this backdrop, we can derive the following: a true national emergency needs to exist, and the exercise of authority must be directed toward the emergency. This is why the orders that revoked Trump’s executive order on the travel ban were appropriate: the extent of presidential power cannot be absolute under our Constitution. The Executive Order sought to cut off lawful travel by people who have gone through the proper channels and processes designed by Congress and by regulations promulgated under congressional authority. The cries from the right that the merits of the Order don’t matter fail to recognize the limitations the President has, even in areas of generally broad presidential authority.