Subsequent debates over reimbursement in Congress marked the beginning of a change in the way Americans understood martial law. By seeking reimbursement, Jackson hoped to set a precedent for, as one historian put it, „the legitimacy of violating the Constitution and civil liberties in times of national emergency.“ footnote12_yagu8gg 12 Warshauer, Andrew Jackson and the Politics of Martial Law, 5-6. He got exactly what he wanted. Congress passed the Restitution Act in February 1844 and symbolically approved Jackson`s imposition of martial law three months on New Orleans nearly 30 years after its end. footnote13_elog7m1 13 February 16, 1844 Act, c. II. 2.5 Stat. 651. Martial law has not always meant what it does today. The term first appeared in England in the 1530s during the reign of King Henry VIII. footnote3_7xe4n8n 3 John M. Collins, Martial Law and English Laws, c.
1500–c. 1700 (Cambridge: Cambridge University Press, 2016), page 27 At that time and for centuries thereafter, martial law generally referred to what is now called „military law.“ footnote4_eqtaqxj 4 Collins, Martial Law and English Law, 3-7; and Dennison, „Martial Law,“ page 52 The law applies when a soldier is court-martialed. In the modern United States, it is codified in the Uniform Code of Military Justice. footnote5_powt113 5 Uniform Code of Military Justice, 64 Stat. 109, 10 U.S.C. §§ 801–946. During World War II (1939-1945), the current state of Hawaii was maintained under martial law from December 7, 1941 to October 24, 1944 after the Japanese attack on Pearl Harbor.  After the war, one of the islands` federal judges, J. Frank McLaughln, the martial law enforcement, said: „Governor Poindexter declared martial law legal, but the military went beyond the governor and established what was only legal in conquered enemy territories, namely a military government not bound by the Constitution.
And them. threw the constitution in the trash and established a military dictatorship.  Chief Justice Roger Taney – of Dred Scott Infamy – wrote on behalf of the majority and welcomed Andrew Jackson`s idea that martial law allows civilians to be subject to military justice in an emergency. He described this power as an essential element of the right of States to defend themselves and suggested that it be inherent in all sovereign governments. footnote16_gg8kpte 16 Luther, 48 U.S. at age 45. By upholding the constitutionality of martial law, the Supreme Court ended what Congress had begun with the restitution law. The Luther decision makes it clear that martial law exists as an emergency power that can be invoked in the United States, at least by state legislatures.
footnote17_21fzk64 17 Vladeck, „Feldtheorie“, 428-29; and Dennison, „Martial Law,“ page 76 The Insurrection Act is an exception to the Posse Comitatus Act, but there are also certain circumstances in which the latter law is simply not applicable. As part V of this report explains, the Posse Comitatus Act does not affect the ability of States to assemble their National Guard forces and deploy them within their own borders. In this situation, National Guard troops operate in the status of active service of the state. The Posse Comitatus Law also does not apply when the armed forces of the National Guard are activated in the so-called Title 32 statute, in which troops are subject to state leadership and control, but are used for federal missions and are usually paid for by the federal government. footnote11_10gonou 11 Elsea, Posse Comitatus Act, 61–62n419; Steve Vladeck, „Why Were National Guard Units Out of State in Washington, D.C.? The Department of Justice`s Disturbing Statement,“ LawFare, June 9, 2020, www.lawfareblog.com/why-were-out-state-national-guard-units-washington-dc-justice-departments-troubling-explanation; and Jennifer K. Elsea, the President`s Authority to Use the National Guard or Armed Forces to Secure the Border, CRS Report No. LSB10121 (Washington, DC: Congressional Research Service, 2018), fas.org/sgp/crs/natsec/LSB10121.pdf. In its explicit terms, Article 253 provides for a situation in which civilian authorities do not need the assistance of the military to enforce the laws, but simply do not enforce them. Accordingly, the President may send troops to suppress any insurrection or other violence that results in the deprivation of a part of the population of that State of a constitutional right. So if Section 253 troops are deployed, they will assume the role of civilian government, at least to some extent.
However, the genesis of Article 253 shows that it is preferable to understand it as allowing the army to replace only the local police, in the service of laws duly promulgated by the civilian authorities. footnote9_tr09oyk 9 What is now 10 U.S.C § 253 appeared to be section 3 of the Ku Klux Klan Act of 1871. Civil Rights (Ku Klux Klan) Act of 1871, chap. 22, 17 Stat. 13. The legislative history of the bill shows that Congress intended for Section 3 to authorize the military to assume the role of local police, but no more. .