Nuclear Command and Statutory Control

Abstract

Almost 50 years after Congress voted on limiting the President’s power to initiate nuclear war, a half century after an intoxicated Commander in Chief reportedly called for nuclear strikes, and 30 years after the Cold War and its conversation about nuclear command and control ended, today the nation is again discussing nuclear launch authority. This article emphasizes that this interdisciplinary conversation is importantly legal, due in part to claims and assumptions that nuclear weapons are constitutionally special – unconstitutional, reserved only to the President, or usable only if Congress has formally declared war. This article recommends instead that Congress make nuclear weapons statutorily special. That is, Congress should recognize the nightmarish risks associated with unfettered Executive power over nuclear launch, acknowledge the importance of good process in decision-making, and write specially tailored rules informed by the covert action statute and other national security frameworks. This article moves the nuclear command and control conversation forward, analyzing developments over the past 30 years in military planning, international security, Supreme Court doctrine, and the national security statutory regime that have strengthened the case for Congress to craft guardrails to prevent abuse of the Commander in Chief power and foster careful inter-agency deliberation. To catalyze further discussion, this article includes the text of a model statute: a Nuclear Forces Control Act.

Keywords: nuclear weapons, constitutional law, congress, presidency, executive power, military, separation of powers, legal profession, Cold War, covert action, intelligence, national security, international relations, international law, interdisciplinary studies

JEL Classification: K40