Do bosses have a hard time pressing the nuclear button? This is what some lawmakers are asking for. Dozens of Democrats in Congress recently urged President Biden to relinquish his sole power. While this did lead to harsh jokes about the new leader’s mental wisdom, it’s a really good question.
Since the start of the Cold War, the United States has been prepared to respond to a massive nuclear attack by an adversary – originally the Soviet Union, and now Russia or China – by launching its missiles and launchers while the attacking missiles continued, a strategy known as “launch on alert.”
The launch advantage of landing enemy missiles was that it made it impossible for the enemy to eliminate our missiles on the ground, thus ensuring a retaliatory attack. In this case, no healthy enemy – or even many crazy enemies – would not obstruct the attack at all.
The disadvantages of this approach are two-fold. First, there is the risk of false alarms. In fact, the Cold War era witnessed many false alarms from both the American and Soviet sides that fortunately did not lead to an accidental war, but it raised this terrifying possibility.
There is a second problem. In theory, the next nuclear strike would invite the president and several other senior officials on a conference call to determine what to do. In this conference on missile threats, the president will be briefed, options presented and asked to make a decision. The problem is that with about 20 minutes of total work done in response to an incoming nuclear attack, there isn’t much time to talk or think.
This is perhaps the best we can do to counter the next nuclear strike. But while that was the great fear in the days of the Cold War, it is likely that all nuclear attacks today come from rogue states such as North Korea and Iran. They could wreak havoc on their targets, but they likely came in the form of a handful of missiles – or, more likely, contraband weapons aboard cargo ships or civilian aircraft. There is no risk that such an attack would destroy the United States’ ability to retaliate.
Then there is the issue of launching an attack by the United States, not against it. In theory, the president has the nuclear laws and can launch a massive nuclear strike on a whim. That’s why Democratic lawmakers, led by Rep. Jimmy Panetta (D-CA), want to change the rules so that a president who starts a strike must first consult with other officials.
They recommend asking the president to consult other officials, such as the vice president and speaker of the House of Representatives, before the first nuclear strike, neither of which the president can dismiss.
It’s not a bad idea, and I encourage these members not only to write a letter, but also to introduce more legislation. Only the United States Constitution gives Congress the power to declare war. It also authorizes the Legislative Council to “lay down rules for government and regulate the land and sea forces,” and of course “to enact any laws that must be necessary and appropriate,” not only to exercise government powers. Congress, but also “any other authority which this Constitution confers upon the government of the United States or any department or official.”
Congress, with limited influence, has attempted to limit the president’s commitment to sending troops abroad through the War Powers Act of 1973. This act has failed in part because presidents want to circumvent its provisions and because Congress is unwilling to assert its powers. But the first nuclear strike on another country is nothing more than “a small amount of fish”, and it seems doubtful that the president will continue to evade a law governing such an attack; Indeed, any attempt to do so would sound alarm bells within the military leadership.
For longer than I’ve lived, the United States allowed one person to control the nuclear trigger. Maybe time has changed.
Glenn Harlan Reynolds is Professor of Law at the University of Tennessee And founder of InstaPundit.com blog.