Martial Law

 

A secret hidden in plain sight

…Trump has sought to undermine every stabilizing institution of American political or civil society: Congress, the courts, federal agencies, universities, law and medicine. Were his goals not so corrupt and self-aggrandizing, we might call him a revolutionary.  Instead, he is simply a greedy bastard who has for reasons unfathomable, hoodwinked a significant minority of Americans into believing he will make them rich or redress their grievances. 

They are discovering the con, though far too slowly for it to matter. But just in case there’s a major erosion of popular support, or congressional opposition arises, Trump has a back-up plan – so well broadcast it might be called a “front-up” plan:  a presidential proclamation of national emergency and declaration of martial law. 

National Guard troops and ICE agents, the latter a veritable Gestapo, are already pre-positioned in Los Angles and Washington. They may be sent soon to Chicago, New York, Boston and Baltimore, though public opposition is growing and there is a chance Trump will hold-off for now. What will be the pretext for a declaration of martial law, followed by postponement of midterm elections? What will martial law look like? Can it be stopped? Here’s a brief primer on martial law and its prospects in the U.S.A. 

Definition

Martial law is mentioned nowhere in the U.S. Constitution. The nearest reference is Article I, Section 8, Clause 15: “The Congress shall have power . . . to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions.” There’s also Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” 

In each case, the coercive power of a militia is proposed as remedy to invasion, insurrection, or violence serious enough to threaten the central government or federated states. Only in extremis, in other words, may national armies be deployed within the nation, and then usually by congress. That prohibition was later codified in the marvelously named (shades of Wyatt Erp) Posse Comitatus Act of 1878 which forbids the use of the federal military to enforce laws within the U.S. 

Constitutional caution about the use of martial law is reflected in the subsequent body of Supreme Court decisions. In Ex parte Milligan (1866), the court forbade use of military courts while civilian ones were still functioning. In a concurring opinion, Chief Justice Salmon P. Chase wrote that martial law could only be asserted “in time of invasion or insurrection within the limits of the United States…when the public danger requires its exercise.” A decade later, in U.S. v Dielkelman (1876), the Court again declared: “Martial law is the law of military necessity in the actual presence of war.”  

Since that time, there have been further limitations upon the power of the executive to suspend habeas corpus (the right to challenge unlawful arrest) and declare martial law, plus one significant expansion, the notorious Korematsu v. United States (1944) which allowed the internment of Japanese Americans during World War II. Though the case was wrongly decided – an injustice that will forever stain the nation — the underlying rationale of the decision was the same as with previous cited cases: Suspension of due process and imposition of martial law is only permissible when danger from war, invasion or insurrection is extreme. 

If the internment of Japanese American is tragedy, the current dispatch of National Guard troops to halt a “migrant invasion” is farce. Far from representing a threat, immigrants have brought the U.S. prosperity. They take the hardest, lowest paying jobs that American citizens don’t want, pay federal and state taxes without receiving benefits in return, and stabilize population numbers at a time of very low birth-rates.  

Immigrants exert little if any downward pressure on wages and contribute significantly to GDP growth. Nevertheless, President Trump has declared illegal immigration a national emergency and commanded the armed forces and national guard to prevent crossings at the Mexican border and apprehend “illegals” everywhere else. 

As always with Trump, motives are murky. It’s not clear if the declaration of emergency was pretextual for the expansion of ICE and increased deportations, or if it was an excuse for the nationwide deployment of non-civilian police forces and the eventual imposition of martial law. The result is the same either way: fascist authoritarianism. 

“That’s some catch, that Catch-22….”

In a recent column in Counterpunch, John Feffer wrote persuasively about what he called “slow-motion authoritarianism,” the idea that some elected leaders “gradually undermine democratic institutions and accumulate more executive power”, until they become full-blown autocrats, like Putin in Russia and Urban in Hungary. That may be the situation with Trump, Feffer argues, but I want to offer a cavil: authoritarianism can also happen, to quote Hemingway on bankruptcy, “gradually and then suddenly.”

Right now, the U.S. is speeding toward martial law.  The fuel is Trump’s narcissism and hunger for power, and congressional Republicans’ will to gratify both. Congress even provided enabling legislation in the form of the One Big Beautiful Bill and Recission Act. 

The first lowered taxes on the rich, paying for them with reductions in Medicaid and Food Stamps. The second cut 80% of funding for USAID, which mostly supports poor, hungry, and sick people abroad. The politics of both bills is transparent: further accrual of power and the crushing of potential political opposition. Hunger provokes activism and resistance; starvation prevents it. 

That martial law will be proclaimed sometime in the next year seems pre-ordained. ICE agents, assisted by state National Guard troops in Los Angeles, Washington, and other Democrat-led cities and states, will round up and arrest undocumented immigrants, dark-skinned and Spanish-speaking legal residents and citizens, and anyone who tries to hinder them. (Suspects may also include anyone holding a submarine sandwich.) 

If protests grow large or unruly, more troops will be sent, including U.S. Army forces, in direct contravention of the Posse Comitatus Act. In that situation, a national emergency will be proclaimed by executive order, and martial law declared in affected cities, and perhaps nationwide. In other words, absent resistance, city after city will be slowly, gradually governed by military force, as Feffer described. 

If urban populations offer significant resistance to ICE raids and federal policing, more military forces will quickly be called in, and martial law declared. That’s the national catch-22: Don’t resist and martial law will happen slowly; resist and it will occur quickly.

There’s another circumstance in which martial law may be pronounced, and it too presents itself as a catch 22. If congressional Democrats filibuster the stopgap budget bill to fund the federal government, Trump may declare a national emergency and instruct the treasury pay the nation’s bills anyway. 

The exercise of spending prerogatives, outside of congressional mandate, would constitute a coup, a de facto “state of emergency,” facilitated by the imposition of martial law.  If on the other hand, Democrats join Republicans in passing the budget – one containing recissions and impoundments — they will be complicit in their own disempowerment. 

They will have created de facto, a government ruled by executive decree. Any public protest will quickly be answered by troops and a declaration of national emergency or state of martial law. Administration officials are no doubt gaming out various scenarios to maximize the chance to postpone or cancel the 2026 midterm elections. If they do, 2028 will also be up for grabs.

And there’s one more situation in which martial law might be declared: political violence targeted against the right. The murder of conservative influencer and Trump-whisperer Charlie Kirk inspired a 4-minute verbal presidential fusillade against the “radical left.” 

Even in advance of the apprehension of any suspect in the killing, Trump vowed retribution against “each and every one of those who contributed to this atrocity and… the organizations that fund it and support it.” It is easy to imagine this shooting, or similar events (regardless of the predominance of far right political violence in the U.S.) triggering what may be called a “Reichstag moment.”  

That’s when an arson fire at the German parliament in February 1933 was used by the Chancellor, Adolf Hitler as a pretext for an attack upon the political left and a presidential decree suspending civil liberties, in effect a declaration of martial law.

Can martial law be resisted? 

The short answer is yes. Despite extraordinary improvements in electronic eavesdropping, video surveillance, facial recognition software, and online tracking, a genuine mass movement to arrest the descent into fascism can succeed. There simply aren’t enough hounds to catch the vast number of foxes who will seek to challenge or undermine a nascent, fascist polity. 

No state, not even a police state, can govern without a population willing to do the millions of jobs required to keep it operating. No nation, not even one locked down under martial law, can coerce millions of its citizens to manufacture, trade, buy, repair, heal, teach, travel, or entertain if they don’t want to. A nation of consumers under martial law will slow their buying; a land of tourists will see travel grind to a halt. A country of investors and entrepreneurs will see profit levels plumet. In those circumstances, the government must fall.  

The only prophylaxis against fascism therefore, is an engaged and motivated mass. But for that to exist, there needs to be smart leaders as well as energized followers. To call the current Democratic Party leadership sclerotic is to say the least. 

But there are Democrats, including 84-year-old Bernie Sanders and 35-year-old A.O.C., who will help the new leaders that will inevitably emerge from the hundreds of thousands of people who are currently engaged in grassroots activism in support of environmental justice, union organizing, prison reform or abolition, gender rights, animal protection, and community health. All of those endeavors have been threatened or undermined by the Trump regime. A declaration of martial law will coalesce that opposition and loose a whirlwind. I hope Stephen Miller is reading this.

Stephen F. Eisenman is emeritus professor at Northwestern University and Honorary Research Fellow at the University of East Anglia. His latest book, with Sue Coe, is titled “The Young Person’s Illustrated Guide to American Fascism,” (OR Books). He is also co-founder and Director of Strategy at Anthropocene Alliance. He can be reached at s-eisenman@northwestern.edu

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