DEBUNKING THE THREAT OF MARTIAL LAW

President trump's recent mantra defining himself as a "law and order" president, ordering hundreds of federal law enforcement agents into cities suffering from aggressive demonstrations, have renewed fears that he might declare a national emergency or impose martial law, potentially affecting the November 3rd election. Back in July, Mr. Trump already suggested that the November election be delayed "until people can properly and safely vote." And more recently, his head of Homeland Security was quoted responding to criticism of unasked for federal interference in cities like Portland and Chicago, stating: "I don't need invitations by the state mayors or state governors to do our job. We're going to do that whether they like us or not." Mr. Trump's continued slippage in the polls, and his continued attempts at changing the narrative from his mismanagement of the coronavirus pandemic to violence in cities demonstrating for "black lives matter" promoting himself aggressively as the antidote and savior of America as we know it, continues to feed the rumors. Although our president is known for breaking constitutional norms and acting outside of constitutional bounds, the short answer to these rumors is decidedly "No!" He absolutely does not have the power to declare martial law, or to change the timing and scope of our presidential election. Martial law, the displacement of civilian authorities by the military, is nowhere to be found in our Constitution, and no act of Congress defines it. The 10th Amendment to our Constitution stipulates that all powers not expressly relegated to the federal government are reserved for the states. This includes police powers. Thus far the administration has paid little attention to these legalities. However, states have already taken them to court, and the magnitude of recent incursions won't compare to what would need to happen on a national scale to potentially threaten the election. President Trump has made a point of hiding behind the Insurrection Act of 1807, which allows him to deploy federal troops against the will of local authorities in certain circumstances. State approval is not required when the president determines that a situation in a state makes it impossible to enforce U.S. laws, or when citizens' rights are threatened. However, the Insurrection Act only covers military assistance in localized situations, not the all encompassing military involvement martial law would allow. Under the latter provisions the president would be able to censor the press, enforce a curfew, detain civilians without charge, and, in Mr. Trump's mind, presumably allow him to affect he scope, content and timing of the upcoming election. Since World War II, we have only declared martial law nine times, five of which intended to counter resistance to federal desegregation decrees in the South. Among these, President Eisenhower sent the 101st Airborne Division to Little Rock to enforce high school integration against the wishes of Arkansas in 1957. And President Kennedy federalized the National Guard to force integration of the University of Alabama in 1962. Scholars are clear: Our president does not have the power to move the date of the election. Article II of the Constitution empowers Congress to choose the timing of the general election. An 1845 federal law fixed it as the first Tuesday after the first Monday in November. At the same time, the Constitution specifically stipulates that the new Congress be sworn in on January 3rd, and that the new president begins his or her term on January 20. Alan Dershowitz, a legal scholar and a staunch supporter of our current president, puts it this way: "Were the president to claim that both the violent disruptions and the spread of the coronavirus justified the use of the military or the suspension of certain basic rights, he would be embarking on unchartered waters, and so would the courts." Theo Wierdsma