Should it be harder for presidents to push the nuclear button? That’s what some lawmakers are calling for, with three dozen Democrats in Congress recently urging President Biden to relinquish his sole authority. While this has led to cruel jokes about the mental skill of the new commander-in-chief, it’s actually a pretty good question.
Since the dawn of the Cold War, the United States has remained prepared to respond to a massive nuclear attack by an adversary – originally the Soviet Union, now Russia or China – by launching its own missiles and bombers while the missiles attackers were still in flight, a strategy known as “Launch on Warning”.
The advantage of launching before enemy missiles landed was even that it made it impossible for an enemy to land our missiles on the ground, ensuring that a retaliatory strike would pass. That way, no sensible enemy, not even many crazy enemies, would bother to attack.
The disadvantages of this approach are twofold. First, there is the danger of a false alarm. In fact, the Cold War era saw several false alarms on both the American and Soviet sides, which fortunately did not trigger an accidental war, but which raised that terrifying prospect.
There is a second problem. In theory, a new nuclear strike would cause the president and several other senior officials to be summoned together in a conference call to decide what to do. At this conference on the missile threat, the president would be informed, options would be presented and he would be asked to make a decision. The problem is that with a total of about 20 minutes to work to respond to an incoming nuclear attack, there is not much time to talk or think.
Perhaps this is the best we can do in the face of an incoming massive nuclear attack. But while this was the great fear of the Cold War days, any incoming nuclear attack is likely to come from rogue nations like North Korea and Iran. They can cause devastation to their targets, but are likely to come in the form of a handful of missiles or, more likely, weapons to be incorporated aboard cargo ships or civilian aircraft. There is no danger that such a strike will destroy the retaliatory capacity of the United States.
Then there is the issue of an attack launched by the United States and not towards the United States. In theory, the president has the nuclear codes and could launch a massive nuclear strike on a whim. That’s why Democratic lawmakers, led by Rep. Jimmy Panetta (California), want to change the rules so that a president who launches the first strike must first consult with other officials.
They recommend requiring the president to consult with other officials, such as the vice president and the speaker of the House of Representatives, none of whom can be fired by the president, before launching a first nuclear strike.
It’s not a bad idea, and I encourage these members not just to write a letter, but to step up and introduce legislation. The U.S. Constitution gives Congress the sole power to declare war. It also gives the legislative branch the power to “formulate rules for the government and regulation of land and naval forces” and, of course, “make all laws that are necessary and appropriate” not only to carry out the powers of the Congress, but “all other powers conferred by this Constitution on the government of the United States or on any department or officer thereof.”
Congress tried, with limited effect, to curb a president’s engagement with troops abroad by the Powers of War Act of 1973. This act affected to some extent the willingness of presidents to evade. its provisions and the unwillingness of Congress to assert its prerogatives. But a first nuclear strike against another nation is no other fish-boiler, and it seems doubtful that a president intended to evade a law regulating this attack; in fact, any effort to do so would provoke alarms from the military leadership.
For longer than I’ve been alive, the United States has let a single person control the nuclear trigger. Maybe it’s time to change.
Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the blog InstaPundit.com.