Opposing view: Important constraints already exist
Can President Trump be trusted with the nuclear launch codes? That question, posed last year by candidate Hillary Clinton, has resurfaced at a Senate Foreign Relations Committee hearing.
Several senators are understandably concerned that Trump’s mercurial behavior could lead to nuclear war with North Korea, which continues to advance its nuclear and long-range missile programs. Nonetheless, it would be a mistake to alter the system for authorizing nuclear weapons use.
A legal maxim that “hard cases make bad law” applies: Changing the law because of the occupant of the Oval Office would set an unfortunate precedent, and could undermine deterrence.
Important constraints on the president already exist, starting with the Constitution. Because of its likely nature, scope and duration, a war with North Korea initiated by the United States would require a grant of authority from Congress; a president who proceeds without it would be acting illegally and face possible impeachment. Trump can and must defend the coun- try against an attack, or an imminent attack, but he cannot start a war on his own. Additionally, the law of armed conflict requires that any nuclear use meet the tests of military necessity, distinction and proportionality, and military officers are bound by law to refuse illegal orders. U.S. policy also provides that nuclear weapons will only be used in extreme circumstances to defend the vital interests of America. In other words, the president cannot order nuclear weapons use on a whim.
Proposals that the president obtain formal agreement from subordinate officials before using nuclear weapons are of dubious constitutionality. In any event, a president who shuns responsibility for failure is unlikely to make such a momentous decision without consulting his generals, who, along with Congress, serve as an important check on a reckless commander in chief.
Brian P. McKeon was principal deputy undersecretary of Defense for policy from 2014 to 2017. He previously served as chief counsel to the Senate Foreign Relations Committee. His views are his own and don’t necessarily reflect official government policy.