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• According to six scholars of constitutional law and presidential power, a 2018 executive order gives the president the ability to impose economic sanctions on foreign entities who interfere in a U.S. election. It does not give the president the ability to impose martial law.
• Under the Constitution, the president can’t unilaterally impose martial law.
Social media users are voicing a theory that President Donald Trump planned to invoke a 2018 executive order to impose martial law by Friday, Dec. 18.
"Martial law or something very similar is going to happen, likely before this Friday, that’s what the experts are saying," says conservative television host Zach Drew in a Facebook video. "I’m talking about John Ratcliffe, the Director of National Intelligence, invoking a 2018 Executive Order."
As he speaks, text from the "Executive Order on Imposing Certain Sanctions in the Event of Foreign Interference in a U.S. Election" flashes on screen.
There are varying definitions of martial law, and many of the purveyors of this particular theory don’t specify what form they expect it to take. However, their descriptions seem to reflect martial law at its most extreme: the suspension of civil authority and military control of civilian functions such as the courts.
PolitiFact spoke to six scholars of constitutional law and presidential power and asked them whether the executive order allows Trump to declare martial law.
They were unanimous: It doesn’t.
"There is literally nothing in the executive order that allows for any kind of use of military force where it isn’t already authorized by statute," said Stephen Vladeck, a law professor at the University of Texas School of Law and a leading expert in martial law.
"The statutory authorities that the executive order invokes would not extend to declaring martial law," said Bernadette Meyler, a Stanford Law School professor.
"It’s painful to hear about this theory, both because it’s not based in fact and because it’s dangerous to be thinking this way," said Chris Edelson, an assistant professor of government at American University.
The 2018 executive order at the center of the claim allows the president to impose sanctions on foreign entities or individuals who have interfered in a U.S. election. It was signed amid reports that the Russian government had attempted to disrupt the 2016 U.S. election and help Trump’s electoral efforts.
"Basically, what (the executive order) does is allow people in the executive branch to impose economic sanctions on foreign actors interfering in the election," said Edelson. "How you get from there to imposing martial law, I don’t know. It doesn’t make any sense."
Any executive order that gave the president the authority to unilaterally invoke martial law would be unconstitutional, the scholars we spoke with said.
"The president has no ability to unilaterally authorize himself to impose martial law, just as he could not issue an executive order allowing himself to decide judicial cases or controversies," said Daniel Kobil, a law professor at Capital University Law School.
Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School.
"Losing an election doesn’t count as a basis for invoking this power," Feldman added.
In 1866, the Supreme Court ruled in the case Ex parte Milligan that martial law cannot be imposed where civil courts are open and functioning. As a result, one should think of martial law as a state of affairs arising from a total breakdown of civil order, Vladeck said.
"The president has a handful of statutory authorities to use the military for domestic law enforcement, but none of those authorities allow for the ‘imposition’ of martial law, versus using the military to restore order in situations in which civilian authorities are unable or unwilling to do so."
The last time the federal government imposed martial law was in Hawaii in 1941 after the Japanese attack on Pearl Harbor.
Even if such conditions existed in a part of the U.S., the president would have to get congressional approval to use the military, said Joseph Nunn, a fellow at the Brennan Center for Justice and author of an exhaustive study on martial law in America.
"If the president and Congress disagree, Congress wins, unless the Constitution gives the president ‘conclusive and preclusive’ authority over the issue. And in the case of martial law, it’s the opposite of conclusive and preclusive," Nunn said.
And if a president attempted to unilaterally impose martial law to secure a second term for himself in the absence of an invasion or rebellion?
"We have a technical term for that," said Feldman. "It’s called a coup d’etat. It would be criminal."
Social media posts say that a 2018 executive order gives Trump the power to impose martial law.
Six scholars of constitutional law and presidential power told us that the executive order doesn’t give the president the power to impose martial law.
Under the Constitution, the president does not have the power to unilaterally impose martial law.
We rate this Pants on Fire!
Brennan Center for Justice, Martial law in the United States: Its meaning, its history, and why the president can’t declare it, Aug. 20, 2020
Email interview with Bernadette Meyler, Carl and Sheila Spaeth Professor of Law at Stanford Law School, Dec. 17, 2020
Email interview with Daniel Kobil, law professor at Capital University Law School, Dec. 17, 2020
Email interview with Stephen Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, Dec. 17, 2020
Interview with Chris Edelson, assistant professor of government at American University, Dec. 17, 2020
Interview with Joseph Nunn, Liberty and National Security Fellow at the Brennan Center for Justice, Dec. 17, 2020
Interview with Noah Feldman, Felix Frankfurter Professor of Law at Harvard Law School, Dec. 17, 2020
Washington Post, Republican contender for Va. governor says Trump should declare martial law, Dec. 15, 2020
The White House, Executive Order on Imposing Certain Sanctions in the Event of Foreign Interference in a U.S. Election, Sep. 12, 2018
PolitiFact, Fact-checking false claims about the 2020 election, Nov. 19, 2020
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