Checking president’s ability to wage nuclear war
A rticle 1, Section 8 of the U.S. Constitution lists among the enumerated powers of Congress the power “to declare war.”
In his notes from the Constitutional Convention, James Madison points to a clear distinction — the power to initiate war would reside in Congress and the authority to conduct that war would vest with the president as Commander in Chief of the Armed Forces. In addition, it would be the president’s job “to repel sudden attacks” without having to seek congressional permission.
Madison and the other founding fathers could never have imagined a weapon so powerful it could destroy cities and kill millions. But they might be more aghast to learn that the executive branch would have the authority to initiate an attack with these weapons without consulting Congress. It is time for Congress to change that. In passing the Atomic Energy Act, Congress gave the president sole control over the use of atomic weapons in 1946, the infancy of the nuclear age. Its primary intent was to assure an impulsive military leader could never employ an atomic weapon without civilian authority.
As decades passed and the nuclear arsenals of the United States and of its ideological nemesis, the Soviet Union, grew exponentially during the Cold War, a different reasoning came into play for maintaining such power in the president alone. It was the fear of a “first strike” Soviet attempt to use its nuclear arsenal to pre-emptively destroy U.S. nuclear weapons. The president, went the logic, would need unfettered ability to respond to such a threat without involving Congress.
The world has changed. Neither the Russians nor the Chinese have any designs on destroying the world by launching an unprovoked nuclear attack on the United States. Making a first strike strategy implausible are the U.S. Navy’s Ohio-class submarines, circling beneath the world’s oceans, ready to unleash a responding rain of destruction.
No, the threat of a nuclear attack today comes from an irrational rogue actor, either a fledgling nuclear power or a terror group that obtains a nuclear bomb. North Korea poses the greatest threat. That’s scary, but not on a Soviet, Cold War scale.
Discussions have begun in Congress to end the president’s sole authority to launch an offensive nuclear attack in favor of a system that would require either a congressional declaration of war or some other level of consent before a nuclear weapon could be used pre-emptively.
It is no mystery as to why this discussion is happening. Sen. Chris Murphy, Democrat from Connecticut, gained national attention and a much-used TV sound bite Tuesday when he framed the context of a Foreign Relations Committee hearing on the topic.
“We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic that he might order a nuclear weapons strike that is wildly out of step with U.S. natural security interests,” Murphy said. An extreme characterization? Maybe not. Recall that President Trump, in dealing with the threat posed by North Korea’s pursuit of nuclear-armed intercontinental ballistic missiles, warned of bringing “fire and fury” upon North Korea and threatening its “total destruction” if it did not abandon its nuclear program.
In early October, the president made a saber-rattling show of a post-dinner photo with military commanders and their spouses. Summoning the White House press corps, he gestured to the commanders around him: “You guys know what this represents? Maybe it’s the calm before the storm.” He would not elaborate. And when his secretary of state, Rex Tillerson, described diplomatic efforts to roll back the North Korean nuclear program, Trump tweeted that Tillerson was “wasting his time trying to negotiate with Little Rocket Man,” the president’s epithet for the North Korean dictator, Kim Jong-un.
While such statements are reckless, and increase the risk of a miscalculation that could escalate to a military exchange between the countries, Trump did not threaten the use of nuclear weapons and on other occasions has said he would use them only as the “absolute last step.”
Even if Trump is removed from the discussion, however, it still makes sense to restrict a president from initiating a nuclear attack without some level of congressional approval, but in such a manner that it does not diminish the president’s ability to defend the country.
The decision to offensively use the most devastating weapons ever created should not be exempt from the constitutional framework of checks and balances.