Nuclear Bombs: What Does The Constitution Say?

The use of nuclear weapons is a highly controversial topic that raises serious constitutional questions about the distribution of power to make war. While the President of the United States has the sole authority to authorize the use of nuclear weapons, there is an ongoing debate about whether this power should be shared with other parties, such as Congress or the Vice President. The Restricting First Use of Nuclear Weapons Act of 2021 highlights the concern that a first-use nuclear strike by the US would constitute a major act of war, requiring a declaration of war by Congress. This act aims to restrict the President's unilateral power to employ nuclear weapons offensively and explores the constitutional implications of war powers in the context of nuclear warfare.

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The President's authority to launch nuclear weapons

The President of the United States has historically held the sole authority to authorise the use of nuclear weapons. This power has been delegated to military commanders who may then sub-delegate authority further. The President's authority to launch nuclear weapons is not absolute, however, and there are several proposals to constrain their power. Some have called for a new process requiring the involvement of multiple parties, such as the vice president, speaker of the House of Representatives, attorney general, secretary of defense, or even the Supreme Court.

The argument for limiting the President's authority on nuclear weapons is based on the concern that no single leader should have unilateral control over such destructive force. This is especially true in the current political atmosphere, where there is a risk of impulsive decision-making. While the President's power to launch nuclear weapons is not absolute, the addition of congressional participation in the decision-making process could violate the separation of powers principle.

The launch of a nuclear weapon is a complex process with multiple checks and balances in place. The President's order must be lawful and authentic, validated by a code that they carry with them at all times. This order then passes through a chain of command, which includes the National Military Command Center deputy director of operations, down to the subordinate elements where the nuclear weapons are located.

There is a two-man rule in place at nuclear launch facilities, requiring that no officers who work with intercontinental ballistic missiles, nuclear-armed aircraft, or nuclear submarines can launch missiles alone. They always work in twos, or sometimes entire teams. This verification process ensures that the order came from the President and helps to prevent the unauthorised use of nuclear weapons.

Despite these safeguards, there is still concern about the potential consequences of a President ordering a nuclear strike without consultation or provocation. Some experts argue that adding more technical limitations and requiring consultation with more sub-elements of the chain of command could improve the system. Ultimately, the decision to launch a nuclear weapon is a complex and highly consequential one, requiring careful consideration of national security and the potential impact on humanity.

Congressional involvement in nuclear decision-making

The use of nuclear weapons and the power to make war are issues that have raised serious constitutional questions and sparked debates about the proper distribution of power. The changing security landscape and the shift in nuclear strategy have made congressional involvement in nuclear decision-making increasingly crucial.

Congressional approval is required for any offensive action, including the use of nuclear weapons. Congress has the authority to authorize war through a declaration or resolution. The two general contexts of first-strike and second-strike defensive uses fall under the category of offensive actions. The principle of proportionate response further limits presidential authority on the second use of nuclear weapons, requiring a tactical nuclear attack rather than a strategic strike.

The involvement of citizens in policymaking related to nuclear energy and waste management has been a topic of discussion. Deliberative forums have been utilized to engage citizens, but the level of trust in their fellow citizens' decision-making capabilities in highly technical areas remains uncertain. Studies have shown that past civic experiences increase support for citizen decision-making, and underlying views on nuclear power may shape support for specific decisions. The Blue Ribbon Commission on America's Nuclear Future (BRC), established by the Obama Administration in 2009, proposed a consent-based approach to siting nuclear waste facilities, emphasizing the democratic right of citizens to participate in environmental and energy decision-making.

Congressional staff members with expertise in nuclear energy development have been surveyed to gauge the perceived importance of public involvement in energy policymaking. Scientists and non-profit stakeholders attach significant importance to public involvement, regardless of their perception of public opinion. The use of public engagement forums and the involvement of citizens in decision-making processes can enhance transparency and trust in policymakers.

Constitutional war powers and nuclear warfare

The US Constitution's framework for the exercise of war powers is under siege as presidential exercises of war powers to repel attacks, rescue lives, protect property, retaliate and threaten pose a challenge to that framework. The nuclear war power is a theoretical challenge as it has only been used twice. The question of whether the authority to use nuclear weapons is vested in the government has been raised, with some scholars arguing that the Preamble to the Constitution and the Due Process Clause prohibit any government official from deciding on nuclear war due to its threat to life. However, this theory has little scholarly and no judicial support.

Some scholars have argued for a fresh look at the constitutional rules for using nuclear weapons, especially in the post-Cold War era, as the dangers of war have increased exponentially since the ratification of the Constitution, and the efficacy of constitutional safeguards intended to limit the likelihood of war has dwindled. The power to unilaterally employ nuclear weapons in an offensive context outside of retaliation for a sudden nuclear attack raises serious constitutional questions about the proper distribution of the power to make war.

The historical context of the Constitution's creation also plays a role in the discussion of constitutional war powers and nuclear warfare. For instance, Corwin argued that Franklin Delano Roosevelt's "aggrandizement" of power during World War II and its perpetuation thereafter obliterated the "constitutional law of peace." On the other hand, Berger wrote during the late Vietnam War era when Congress was debating or had just enacted the War Powers Act.

Congress may authorize perfect war through a declaration or imperfect war through a congressional resolution. Any obstacles to aggressive war would be political rather than legal. In the context of nuclear weapons, this could mean strategic nuclear warfare, which includes counter-value (societal) targeting and counterforce (military) targeting, or tactical nuclear warfare, which includes theater (intermediate) targeting and battlefield (limited) targeting.

The discussion of constitutional war powers and nuclear warfare is complex and multifaceted, involving historical context, changing understandings of constitutional rules, and the unique challenges posed by nuclear weapons.

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Constitutional amendments and nuclear weapons

The Constitution does not explicitly mention nuclear weapons, but the topic of nuclear weapons and the war powers of the US government have been discussed in relation to the Constitution. The President of the United States has historically held the sole authority to authorize the use of nuclear weapons, but this has been increasingly questioned in recent years, with calls for a constitutional amendment to restrict the President's unilateral power.

The Restricting First Use of Nuclear Weapons Act of 2021 is one example of legislation introduced to limit the President's authority in this area. The Act states that a first-use nuclear strike conducted without a declaration of war by Congress would violate the Constitution. It asserts that Congress, as the body with the exclusive power to declare war, must provide checks and balances to the President's authority to authorize the use of nuclear weapons.

The constitutional distribution of war powers and the use of nuclear weapons is a complex issue. Some scholars argue that the President has the power to defend the country by retaliating against a nuclear attack, but the constitutional implications of a first-strike or offensive use of nuclear weapons are less clear. The increasing destructiveness of modern weapons has also called into question the efficacy of constitutional safeguards intended to limit the likelihood of war.

Proposals to constrain the President's authority in this area vary. Some suggest requiring consensus among the President, Vice President, and Speaker of the House of Representatives, while others call for a process involving multiple parties, including the Vice President, Defense Secretary, and Congress. These proposals generally differentiate between the first use and second use of nuclear weapons, with the primary concern being the President's unilateral decision-making in instances of first use.

In conclusion, while the Constitution does not directly address nuclear weapons, the discussion surrounding constitutional amendments highlights the need for a balance of powers and congressional involvement in decisions regarding the use of nuclear weapons, especially in the context of first-strike capabilities.

Nuclear weapons and the Supreme Court

The Supreme Court has been involved in several cases concerning nuclear weapons and their legality, use, and proliferation.

United States v. Progressive, Inc.

In this case, the Supreme Court dealt with the publication of information related to nuclear weapons production in America. The court considered the potential impact of publication on national security and the proliferation of nuclear weapons. While the government did not claim that the publication posed an immediate danger, it argued that it could increase the risk of nuclear weapons proliferation and harm national security. The court acknowledged the potential consequences, weighing the right to publish against the risk of "thermonuclear annihilation." Ultimately, the court found that the publication could cause ""grave, direct, immediate, and irreparable harm."

Nebraska Press Association v. Stuart

This case involved the Supreme Court deciding on prior restraint in a lurid mass murder case to protect the defendant's right to a fair trial. The court ruled against prior restraint, viewing it as a serious restriction on the First Amendment.

Legality of the Threat or Use of Nuclear Weapons

The International Court of Justice (ICJ) considered the legality of the use of nuclear weapons under international law, including the United Nations Charter, laws of armed conflict, and relevant treaties. The ICJ noted the unique characteristics of nuclear weapons and their potential incompatibility with the laws of armed conflict. While it found no specific prohibition on the use of nuclear weapons in treaties, it emphasized the principles of distinction between combatants and non-combatants and the avoidance of unnecessary suffering.

Nuclear Waste Storage Cases

The Supreme Court has also been involved in disputes over nuclear waste storage, particularly regarding the authority of the Nuclear Regulatory Commission (NRC) to license temporary storage sites. The Biden administration and nuclear fuel storage companies challenged the 5th Circuit Court's decision, arguing that it misinterpreted the Atomic Energy Act and the Nuclear Waste Policy Act. The Supreme Court's decision will impact plans for storage facilities in Texas and New Mexico.

"Nuclear Option" in Politics

The term "nuclear option" has been used outside of the direct context of nuclear weapons to describe procedural maneuvers with potentially serious consequences. For example, it has been invoked in relation to changing the size of the Supreme Court and confirming nominations to the Court by a simple majority.

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