Should it be harder for presidents to push the core button? This is what some lawmakers are asking, with three dozen congressional Democrats recently asking President Biden to relinquish his sole authority. Although this has led to cruel jokes about the mental prowess of the new commander-in-chief, it is actually a good question.
Since the outbreak of the Cold War, the United States has been preparing 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 attacking missiles are still in flight, a strategy known as ‘Start on alert’.
The advantage of launching before enemy missiles even landed was that it made it impossible for an enemy to wipe out our missiles on the ground, ensuring that retaliation would succeed. If this is the case, no sensible enemy – or even very mad enemies – will 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 blessed did not cause an accidental war, but which gave rise to the frightening prospect.
There is a second problem. In theory, an incoming nuclear strike would lead to the president and several other senior officials being convened during a conference to decide what to do. In this missile threat conference, the president would be informed, options offered and asked to make a decision. The problem is that with a total of about 20 minutes to cooperate in response to an incoming nuclear attack, there is not really much time to talk or think.
Perhaps this is the best we can do in the face of a massive incoming nuclear strike. But while this was the great fear of the Cold War days, all incoming nuclear attacks today are likely to come from rogue countries such as North Korea and Iran. They can destroy their targets, but most likely they come in the form of a handful of missiles – or, more likely, weapons smuggled aboard trucks or civilian jets. There is no danger that such a strike will destroy the ability of the United States to retaliate.
Then there is the issue of an attack launched by, not in the United States. In theory, the president has the core codes and he could start a massive nuclear strike on a grill. That’s why Democratic lawmakers, led by Representative Jimmy Panetta (D-California), want to change the rules so that a president who begins a first strike must first consult with other officials.
They recommend that the president consult with other officials, such as the vice president and the speaker of the House of Representatives, and neither can be fired by the president before launching a first nuclear strike.
This is not a bad idea, and I encourage these members to not only write a letter, but to act and legislate. The U.S. Constitution gives Congress the sole power to declare war. It also gives the legislature the power to ‘draw up rules for the government and regulation of the land and naval forces’, and of course to ‘make all laws that will be necessary and proper’, not just for the implementation of the powers of Congress. , but “all other powers conferred on the United States Government or in any department or officer thereof by this Constitution.”
Congress sought, with limited effect, to limit a president’s commitment to troops abroad by means of the Armed Forces Act of 1973. This Act was based in part on the willingness of presidents to evade its provisions, and on the unwillingness of Congress to assert its privileges. But a nuclear attack on another nation is a whole kettle of fish, and it seems doubtful whether a president would decide to evade a law regulating such an attack; indeed, any attempt to do so would set off alarm bells within the military leadership.
For longer than I lived, the United States let a single person control nuclear power. Maybe it’s time for that to change.
Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the InstaPundit.com blog.