Martial Law Is Not The Law

 Not the last word, but one I think sound:

The Insurrection Act does not authorize martial law. The term “martial law” has no established definition, but it is generally understood as a power that allows the military to take over the role of civilian government in an emergency. By contrast, the Insurrection Act generally permits the military to assist civilian authorities (whether state or federal), not take their place. Under current law, the president has no authority to declare martial law.

"Martial law" has no established definition because it is not a legal concept in Anglo-Saxon jurisprudence. The European nations whose laws recognize a “state of exception,” do so based on the Roman concept of the diktator, to whom the Senate would give all power over the Empire in a time of extreme crisis, to serve until the crisis had passed. There is no counterpart in English law (the sovereign cannot be usurped), nor in the Constitution. Congress is the power, the people are the sovereign, the President is the Executive. Congress can remove the President; the President cannot remove any member of Congress, or ignore the Congress. The people can remove Congress and the President, and replace them. They cannot replace the people. 

The President cannot declare martial law.

I know you’re thinking “But the Supreme Court!” Well, the court has granted Trump sway over government, more than Article II allows. But it has not granted him authority to remove Federal Reserve members without cause, or deport people without following the law. Trump can operate too freely over the government; but not over the law. And not in ways that undermine the law. Trump can undermine the Congress (which is bad enough), but he can’t undermine the law. It’s not a good distinction, but it’s one the Court is making (without good legal reasons). Essentially, the Court is refusing to make Trump a diktator. It’s cold comfort, but it is a limitation.

The limitations in the Insurrection Act are not unlike those on the diktator. The crisis is the only thing the Act can address. And what will Trump do? Send the Marines against people in animal costumes and naked bicyclists.? Put out the fires that exist only in his mind? Replace the missing windows of his imagination? All the king’s horses and all the king’s men can’t put that Humpty Dumpty together again.

The situation presents an interesting factual challenge to invocation of the Act. Either it is a carte blanc to dictatorship, or it is a restriction on Presidential authority, giving only so much authority as is needed; and in the present case, not needed at all. It isn’t really a challenge to executive responsibility to say the delirium of an occupant of the White House is not enough to enable the military to enforce the law against people who are not breaking the law.

The Insurrection Act can’t be invoked because the President is deranged.

That is the question, and I think Trump’s presidency will be wrecked upon those shoals. I also don’t think even the Roberts Court wants to go down with him on that ship.