Someone already mentioned it, but the event would also trigger Kiefer Sutherland, who is the United States’ designated survivor, to become the new president.
Caveat: I was unaware of the extent of state defense forces prior to this thread, despite having served in the military and residing in a state with an SDF. However, I don’t think that’s quite right.
As I understand it, all National Guard and Air National Guard units are state militia units, albeit ones that can be “Federalized” as reserve components of the U.S. Army and U.S. Air Force. So, the Maryland National Guard is an element of the Maryland state militia. However, Maryland and 20 other states also maintain separate state militia organizations which are not integrated into the U.S. armed forces. So, it’s not that the State Militia in Maryland is separate and distinct from the National Guard, it’s that in Maryland, the State Militia consists of two elements: the Maryland National Guard (whose units are also simultaneously reserve elements of the U.S. Army), and the Maryland Defense Force (which is solely a state militia with no Federal role).
Only a little more detail on what was going to be a long post, and probably important detail given common misconceptions, of where I was going with this anyway.
Tom Tildrum brought up precedent about suspension of habeus corpus under the Constitution with and the Supreme Courts opinion in Milligan. It’s an important piece because, at it’s most literal, civilians being tried and convicted by military tribunals instead of the civilian judiciary is martial law.
It’s frequently viewed in a more broad fashion that covers a range of other activities by the military. That leads us to two important pieces of legislation that cover how and when federal troops, to include federalized state troops, can be used domestically. I’ll use the wiki links for both since they are pretty good roundups. A major limititation is the Posse Commitatus Act of 1878. Generally it constrains the President from using federal Army and Airforce troops for domestic law enforcement. Yes that technically excludes the Dept of the Navy to include the Marines. They include the limitation in their regulations even though it’s not law. The Coast Guard with both a law enforcement mission under DHS (formerly DOT) and a wartime military mission under DOD is also not contrained by Posse Commitatus.
The major exceptions is the Insurrection Act of 1807. Note that there was a significant amendment in 2006 that was completely repealed in 2007. Wiki goes fully into the amendment weeds before mentioning it changed back. It’s worth reading to get far more than the next couple of summary points. The President can invoke the Insurrection Act when:
- The state/territory is unable to respond in way that enforces their laws and protects the rights of their citizens and ask the President for help. The legislature is given authority to make the request. If they can’t convene the Governor is authorized. The President can then supply federal troops up to the limits of the state’s request.
- It’s impossible to enforce federal laws in a state/states/territories by “the course of ordinary judicial proceedings.” Eisenhower used this exception to use both federalized National Guard and active duty federal troops in Little Rock in 1957. In that case there was a court order that the Governor was refusing to implement.
- There’s a third case that’s not much different from the last point but it focuses on state law (instead of federal) that is not being enforced thereby denying Constitutional rights and federal protections to citizens. The language is less clear about the judiciary. It mentions the insurrection, domestic violence, unlawful combination, or conspiracy impeding “the course of action under those laws.” There’s more wiggle room but a constitutionally functioning law enforcement and judiciary operating within a state or territory make it hard for the President to use this portion of the law without litigation.
There’s another framework for the use of federal troops that is in compliance with Posse Commitatus, Defense Support of Civil Activities (DSCA). It’s a complicated dance of performing tasks within the constraints of Posse Commitatus. Federal military help is not law enforcement at that point. Federal forces then fall under the supervision and direction of state civil authorities; generally, that’s typically the Governor and his designated subordinates. I know in at least one state a county elected official was the focus of response direction. It’s a complicated relationship with the normal military chain of command still “in charge” but only really empowered to conduct the tasks the civil authorities they are supporting assign. “Here Governor use some of my federal troops for strictly non-law enforcement help during your crisis” isn’t really federal martial law IMO in even the loosest sense of the word.
The President is pretty solidly constrained by both other government branches in using federal troops domestically. It’s tough to use the federal military for law enforcement tasks in specific areas, let alone nationally, under current court precedent and law. Congress obviously could change the laws to be less limiting given them a solid chunk of power if they could all agree quickly in a crisis. State governments, and especially governors, are powerful inside their state lines.
Still reading Leo Bloom? I can cover the Guard and it’s dual status in three (but not two;) ) simplified points:
- The Governor can activate them for state duty. The state pays. The Governor is their Commander in Chief.
- The President can federalize the National Guard. As soon as they are mobilized onto federal active duty they must comply with federal laws like Posse Commitatus until demobilized. The President is their Commander in Chief for that period.
- There’s a weird in-between called Title 32 orders. The feds offer to pay for specific allowed domestic missions. The Governor may or may not accept the mission and funds to activate their troops. Posse Commitatus does not apply. The Governor is their Commander in Chief.
Believe it or not Northern Command (NORTHCOM), the combatant command with responsibility for North America has a plan for that. It’s not even just a dusty plan on a shelf. It holds a large annual exercise to validate the readiness of units trained, equipped, and tasked with responding to exactly that scenario. The response is intentionally planned to be Posse Commitatus compliant. The Guard gets the tasks that only they, on state duty, can perform. Some might call it state martial law. Federal troops are intentionally only given tasks that support civil authorities and are legal under Posse Commitatus.
Proper prior planning…
Gdave that’s basically correct, although there’s actually a lot of really complex…shit, that goes on with our national guard system. For example the structure of the national guard in modern times is that when you join, you’re actually “dual enlisting” (assuming you’re joining as an enlisted man, obv), into both a State National Guard organization and the “National Guard of the United States.”
A “typical” guardsman is a civilian most of the time who attends required training exercises (drill), and is most immediately controlled by the commander-in-chief of their State National Guard (the Governor of said state.) They can be activated to “State Active Duty”, for various purposes, during which time they will receive pay for said service. State Active Duty is technically funded out of State coffers, but it’s often utilized in natural disasters and often times Federal aid ends up being sent to the States to help cover these costs. Incidentally “State Active Duty”, is a status in which the Posse Comitatus Act does not apply, which means when activated in this context the national guard forces can be utilized for domestic law enforcement operations if the Governor so orders it.
An atypical guardsman is a full time guardsman who serves in what’s called “Title 32” duty. This basically exists because it’s impractical for the entire guard to be part time, there needs to be some element of full time guard to maintain the infrastructure and processes that allow the guard to function. When under Title 32 duty, it’s typical that you have a full time job with the military, as a consequence of your membership in the national guard, you are still reporting up to your State’s governor and you are serving in the continental United States. However, unlikely purely State Active Duty, under Title 32 duty you’re actually “active” with the Federal military, which has important consequences for active duty time/benefit considerations, and you are paid by the Federal Government and receive regular Federal benefits, despite being under nominal State control.
When a guardsman is deployed as part of, for example, an Air Expeditionary Force in the Air National Guard, they are on “Title 10” duty, which is fully Federal (Title 32 can be sort of seen as a hybrid status between Title 10 and State Active Duty.) In this context you’re part of the actual Federal military command and control structure, and your ultimate commander-in-chief is the POTUS. While most frequently used for overseas deployments, Title 10 duty can be ordered by the President (even over a Governor’s objection) for domestic service in certain circumstances.
Under 10 USC 12302 the President requires a Governor’s consent, likewise for 10 USC 331. Under 10 USC 332, the President is authorized to call into Title 10 service any national guard units in a state, even against the wishes of that State’s governor, to suppress rebellion or insurrection–under this section it’s an exception to Posse Comitatus (which means the Federalized national guard could be used for domestic law enforcement.) Likewise under 10 USC 12406 the President can do the same in cases of invasion or rebellion.
State Defense Forces were expected under the first national guard law passed in 1903. The Secretary of War at the time actually encouraged that in addition to the new State National Guards, States organized “State Defense Forces.” The purpose of which would be to have a force that wouldn’t be ordinarily Federalized and thus would “always be available” for local purposes if necessary. However interestingly it’s very specifically stated that this represents a “division of the militia” of the State. So both the State National Guard and the SDF are parts of the militia. More interestingly, under existing and previous Federal laws the President does have authority to call the whole militia into service in certain circumstances. This means that from a legal perspective, while the reason for maintaining an SDF is to have a military force available even if the State’s NG forces are called into Federal service and thus unavailable, technically the Federal government could force SDFs into Federal service as well. However in Perpich v Department of Defense (1990), the Supreme Court noted, albeit did not rule on the issue, that the text of statutes like 10 USC 332 differentiate between “armed forces” and “militia.” An SDF is not part of the Armed Forces of the United States, but it is part of the militia of the United States, and under 10 USC 332 could likely be forcefully Federally activated.
This hasn’t been done primarily because it basically undermines the whole reason we have a National Guard. The concept behind the National Guard grew out of the poor performance of State militias in many previous conflicts. There were no national standards for training or discipline. With the establishment of the national guard there was now a funnel of Federal funding for these State military forces, but also Federal control of their training, equipment, organization and etc–this allowed these units to be seamlessly Federalized as necessary. Since State Defense Forces are not regulated under the same hierarchy, there would be very little benefit to ever activating them Federally, particularly since not all states even have SDFs, and they tend to be very small and relatively weakly funded in any case.
Unhelpfully the government has seen fit to renumber the US Code, what was once 10 USC 331 and 332 is now 10 USC 251 and 252.
Leo Bloom has read all of the above and thanks you.
I realized when I went to a cite upthread that I had never heard of/thought of State Defense Forces, which is another wrinkle.
There’s an armory a few blocks away from me in downtown Manhattan, which I always assumed was a place nowadays only for art shows, etc., but every now and then I’ve seen an honest to God Humvee outside. Now I have to check who the facility belongs to.
Is it the one on Lex and 25th? Because that is indeed the HQ of the 69th New York infantry regiment.
Yes, exactly that one. So is it State Defense or NG? (Or should I know that by “69th New York infantry regiment?”
That’s a National Guard Unit, and has a pretty long and illustrious history, particularly in the Civil War, where it was present at a number of the very largest battles of the entire war:
Antietam, 1862
Fredericksburg, 1862
Chancellorsville, 1863
Gettysburg, 1863
Petersburg, 1864
It was also present for the surrender of Robert E. Lee and his Army of Northern Virginia at Appomattox Courthouse.
And yes, the armory building is the real deal, although it mostly just has administrative offices in it these days. It’s actually interesting, through the national guard there are “armories” in a ton of American cities and towns. Many of them serve as community centers/venues for a lot of things since they often have a lot of available space, many people don’t even realize/think about the military aspect to them.
I remember when the National Guard came into L.A. during the riots at the end of April 1992, and seeing them go up and down Western Avenue in armored vehicles. I tried to talk to them but they apparently weren’t supposed to respond. Obviously it wasn’t martial law but it kind of gave us a taste of what martial law might look like.
Yet South Carolina’s is entirely separate. The South Carolina State Guard has it’s own budget line, history and laws that protect it. Most of the laws mirror similar ones for the Army Guard and the Air Guard - both of which are active here - but they maintain their distinction with a militant fervor.
Ultimately, I think a civil war would be by far the most likely scenario. We’re being prepped for it. We have a nation that has as many guns per capita as Liberia, and the political hatred is at almost hysterical proportion. We have “Trumpeteers” wearing their red Trump hats and walking around now with T-shirts that say, “I’d rather be Russian than a Democrat”.
If Patton were still alive, he’d shoot them. I’d follow him around and reload his gun for him.
Seems like natural disasters lead to local martial law (think Hurricane Katrina). On a national scale, perhaps something on the order of the Yelllowstone supervolcano erupting?
Right, but…you seem to be disagreeing with me, but I don’t see where the disagreement is.
In all 21 states that maintain them, the State Defense Force is separate from the state National Guard organization. The State Defense Force is a pure state militia, and the National Guard is a dual-role organization - its units are simultaneously state militia units and U.S Army reserve units.
The Maryland state militia, discussed above, has two elements: the Maryland Defense Force, and the Maryland National Guard. Similarly, the South Carolina state militia has two elements: the South Carolina State Guard and the South Carolina National Guard.
I don’t see how South Carolina’s situation is “yet” any different from Maryland’s?
Moderator Warning
Jasmine, you’ve been noted and warned for political potshots before so you know this is against the rules. And the last sentence is basically trolling. This is an official warning. If you continue this behavior, you will find your posting privileges under review.
Colibri
General Questions Moderator
I think the answers so far, though good, are missing something. The OP put “temporary” in quotes. Is the OP asking about martial law that starts out as “temporary” but becomes permanent?
Actually that was I originally thinking about. Seems to me that several examples of a strong man takeover as a result of an emergency. Julius Ceaeer came to mind.
Anyway, thanks to you guys for the intetesting and informative responses.
It hasn’t happened in the US as far as I know, but it happened in places like Chile. The military staged a coup in 1973, claimed they were going to give back power to a civilian government and then kept power until 1990.
Nun-nuh. Keifer is Canadian, born in London, UK, so can’t become Prez.
Okay, then what you’re really asking is what would permit a military coup in the United States : a “temporary” situation that becomes permanent.
That would require overturning the constitutional order. Tom Tildrum cited the Milligan case upthread. In that case, the Supreme Court says no martial law if the civilian courts are open for business.
That’s one measure of martial law. A temporary/permanent martial law would have to shut down the courts, or drastically restrict access.
That would mean overturning the basic constitutional order.
How that might happen strikes me as more GD or IMHO than GQ.