States of Emergency and Martial Law


This is the eleventh in a series of blog posts beginning on February 4, 2020 focused on justice systems’ responses to the coronavirus pandemic -- SARS-CoV-2 is its technical name and Covid-19 is the disease it causes --and the justice systems’ active participation in a whole-of-society-approach(WOSA) to national security and safety threats such as Covid-19.

Law and order is changing across the United States and around the world during the existential crisis of the coronavirus epidemic in unprecedented ways as  people, groups, and organizations violate quarantine and stay-at-home orders;  ignore restrictions on travel and congregations; horde scarce medical supplies and provisions; engage in price gouging; mount illegal protests; and commit crimes. Police officers in New York City today are patrolling parks, monitoring restaurants and bars to ensure they are closed, and making sure that people are complying with “social distancing” in public spaces. When every expert and most government officials are saying that the pandemic will get worse before it gets better, I am questioning whether  it is time to consider not only more widespread states of emergency, which officials of federal and state governments already have, but martial law, which we have not.

I looked up the definitions of a “state of emergency” and “martial law” at Wikipedia and several legal sources yesterday morning to refresh and enhance my understanding of these terms. Given the increasing concerns about  law and order caused both by the pandemic  and our responses to it here in the United States and around the globe, I was not surprised to learn that the entry for “state of emergency” had been updated just hours before.
A state of emergency is a situation in which a government is empowered to perform actions or impose policies that it would normally not be permitted to undertake. A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk. Such declarations alert citizens to change their normal behavior and orders government agencies to implement emergency plans…States of emergency can also be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country's constitution or basic laws,  sometimes through martial law.
The United States Constitution at least implicitly authorizes the President to mobilize the military in the Covid-19 pandemic, which President Trump has not yet done (see the blogposts of March 23rd, “Absence of the U.S. Military in the Fight to Mitigate the Covid-19 Pandemic,” and March 26th, “ Other Countries Are Mobilizing Militaries Against the Coronavirus Epidemic: The United States Is Not”).  As of March 26, at least 20 countries including the United States and various states and provinces in the United States and Canada have declared states of emergency.
Martial law is the imposition of direct military control of normal civilian functions by a government, especially in response to a temporary emergency such as invasion or major disaster, or in an occupied territory… Typically, the imposition of martial law accompanies curfews; the suspension of civil law, civil rights, and habeas corpus; and the application or extension of military law or military justice to civilians. Civilians defying martial law may be subjected to military tribunal (court-martial).
The Washington Post reported that President Trump may announce a federally mandated quarantine on New York City and parts of New Jersey and Connecticut that would impose “enforceable” travel restrictions on people planning to leave the New York tri-state area because of the coronavirus pandemic, leaving some people wondering whether the federal government has the power to do that. As we opined in these pages, the answer is a clear yes.
_________
Personal precautions and other measures we were urged to take just a week or so ago, medical experts and government officials are telling us may be barely or not nearly enough today. The same can be said today of what all but a few governments like China and South Korea -- countries that do not have the kind of decentralized structure of government and health care system of the United States -- have done or are doing. Any thoughtful cost-benefit analysis dictates that we cannot be overcautious in our response to the Covid-19 pandemic.
Made2Measure 2020. All rights reserved.

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