Should it be more difficult for presidents to push the nuclear button? That is what some lawmakers are asking for, with three dozen Democratic congressmen recently asking President Biden to relinquish his exclusive authority. While this has led to cruel jokes about the new commander-in-chief’s mental prowess, it’s actually a very good question.
Since the start of the Cold War, the United States has remained ready to respond to a massive nuclear attack by an opponent – originally the Soviet Union, now Russia or China – by launching its own missiles and bombers while the attack missiles were still in flight, a strategy known as “Launch on Warning”.
The advantage of launching even before enemy missiles landed is that it made it impossible for an enemy to destroy our missiles on the ground, ensuring that a retaliatory attack passed. That being the case, no enemy is – or even many crazy enemies – would care to attack.
The disadvantages of this approach are two. First, there is a danger of a false alarm. In fact, the Cold War era saw several false alarms on both the American and the Soviet side, which fortunately did not trigger an accidental war, but it did raise this frightening prospect.
There is a second problem. In theory, an imminent nuclear attack would cause the president and several other senior officials to be called on a conference call to decide what to do. At this missile threat conference, the president would be informed, presented with options and asked to make a decision. The problem is that, with a total of about 20 minutes to respond to an approaching nuclear attack, there is not much time to talk or think.
Perhaps it is the best we can do in the face of a massive nuclear attack. But while that was the greatest fear of the Cold War days, any nuclear attack that comes today is likely to come from rebel countries like North Korea and Iran. They can wreak havoc on their targets, but they will likely come in the form of a handful of missiles – or, more likely, weapons smuggled on board freighters or civilian jets. There is no danger of such an attack destroying the United States’ ability to retaliate.
Then there is the question of an attack launched by, not in the United States. In theory, the president has the nuclear codes and could launch a massive nuclear attack on a whim. That is why Democratic lawmakers, led by Rep. Jimmy Panetta (D-Calif.), Want to change the rules so that a president launching a first attack has to consult with other officials first.
They recommend requiring the president to consult with other officials, such as the vice president and the president of the House of Representatives, none of whom can be fired by the president, before launching a first nuclear attack.
It is not a bad idea, and I encourage these members to not simply write a letter, but to step up and present legislation. The US Constitution gives Congress the exclusive power to declare war. It also grants legislative power the power to “establish rules for government and the regulation of land and naval forces” and, of course, “make all laws that are necessary and appropriate” not only to fulfill the powers of Congress but ” all other powers conferred by this Constitution on the United States government or any department or employee thereof. “
Congress tried, with limited effect, to contain the commitment of the President’s troops abroad through the War Powers Act of 1973. This act shattered to some extent the willingness of presidents to escape its provisions and the reluctance of Congress to enforce their prerogatives. But a first nuclear attack in another nation is’ another kettle of fish, and it seems doubtful whether a president would intend to evade a law governing such an attack; in fact, any effort to do so would raise the alarm within the military leadership.
For longer than I live, the United States allows a single person to control the nuclear trigger. Perhaps it is time to change.
Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the blog InstaPundit.com.