Add yesterday’s rage-spasm of a press conference to the growing list of reasons reasonable people are inclined to worry about Donald Trump’s proximity to nuclear weapons. In addition to what it suggested about Trump’s moral compass (“Very fine people” aren’t attracted to posters that look like this), his performance also highlighted questions about the judgment, temperament, and impulse control of the man entrusted with the world’s most fearsome arsenal.
Last week, recall, Trump threatened North Korea with nuclear annihilation: “North Korea best not make any more threats to the United States…. They will be met with fire, fury and frankly power the likes of which this world has never seen.” “Fire and fury” was ad-libbed, apparently, but on Thursday, he upped the ante: “if anything, that statement may not be tough enough.” (For a cooldown lap, on Friday, Trump warned he was “not going to rule out a military option” in Venezuela.)
When you’re faced with a president who has weekly meltdowns on Twitter and likes to “wing it” with nuclear threats, it tends to concentrate the mind painfully on the legal and practical restraints to presidential power. Does the president have the constitutional power to launch a nuclear first strike on a country for “mak[ing] threats”? If he decides to act on that impulse, is there anything Congress can do to stop him?
The first question’s the easy one: the answer is no. In the absence of an imminent attack, the president has no constitutional power to rain down “fire and fury” on North Korea. As Ilya Somin explains here, “the Constitution very clearly reserves to Congress the power to start a war.”
The president retains some independent power to act defensively: to “repel and not to commence war” or “repel sudden attacks,” as Madison’s notes from the Convention put it. We can argue about whether a second strike—launch under attack—is included within this power. But the constitutional power to “repel sudden attacks” doesn’t include the power to launch them.
The whole point, as James Wilson told the Pennsylvania ratifying convention in 1787, was to design a “system [that] will not hurry us into war…. It will not be in the power of a single man… to involve us in such distress; for the important power in declaring war is vested in the legislature at large.”
Is there anything Congress can do to prevent a trigger-happy president from hurrying us into nuclear war? Congressman Ted Lieu has drafted a bill that he hopes will do just that. HR 669, the “Restricting First Use of Nuclear Weapons Act,” provides that “The President may not use the Armed Forces of the United States to conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.”
Someone from the John Yoo school of constitutionalism might argue that the law encroaches on presidential prerogatives by “micromanaging” the means available to protect national security. But Lieu’s bill is clearly constitutional: if Congress can tell the president not to use ground combat troops in a particular war, it has the legal authority to bar him from launching an unauthorized nuclear first strike.
Would Lieu’s bill work, though? Here, I have my doubts.