By David S. Jonas and Bryn McWhorter
As it has been since the dawn of the atomic age, the president possesses the sole authority to authorize the use of nuclear weapons by the United States. Not since the bombings of Hiroshima and Nagasaki in World War II has the United States or any other power launched a nuclear attack. In recent years, however, interest in ending this exclusive control over the most lethal weapons on earth has increased demonstrably.
Calls for sharing this authority escalated during the last administration, when President Donald Trump made a habit of unilaterally changing national policy at the speed of a tweet. The calls have continued into the Biden presidency,1 even among anti-Trump Democrats who have come to understand that no one leader should have unilateral control of nuclear launch authority. Various politicians,2 along with legal and national security experts,3 have called for a new process requiring the involvement of multiple parties before a nuclear attack is authorized, rather than continuing to allow the decision to be controlled by a single individual.
In general, these proposals differentiate between the first use and second use of nuclear weapons. Most experts would leave untouched the president’s sole authority in instances of second use, that is, when the United States is already under nuclear attack and must respond rapidly in self-defense. The primary concern is when a president intends to initiate the first use of nuclear weapons. In that instance, when there is time to involve others in the decision, it is necessary and justifiable for the president’s power to be appropriately and reasonably curtailed.
Options for Constraining the President
There are several proposals to constrain the president. One would require consensus among the president, vice president, and speaker of the House of Representatives4—the two individuals next in line in the constitutionally mandated presidential chain of succession. Another proposal would have the president involve the attorney general and secretary of defense in his decision-making.5 Advancing one of the more ludicrous ideas, others have even advocated a role for the Supreme Court.6 Some experts have called for a consultation,7 rather than consensus, requirement in which the president would discuss the momentous decision with an array of high-level national security advisers prior to authorizing the launch of nuclear weapons but not be bound by what they advise. Finally, some politicians have advocated for laws prohibiting the president from authorizing a nuclear attack in the first instance absent a declaration of war by Congress.8 None of those options are realistic or acceptable.
The first proposal should fail because it would require the approval of the speaker of the House, an individual outside the executive branch. Often, this person will be of a different political party than the president. On one level, that could be viewed as a benefit. Because of the magnitude of the decision, requiring consensus among individuals on opposing sides of the political aisle seems reasonable on the face of it. As the specifics become clear, however, the matter could result in political horse trading. Additionally, the importance of operating from a basis of national unity cannot be overstated given the profound consequences that would result from the use of nuclear weapons.
Although salient, such considerations are not compelling in this context. The launch of a nuclear weapon must remain a national security decision. It must not be subject to political games in what could well be a life-or-death situation for the United States. Could anyone imagine Trump seeking approval for a nuclear first strike from Speaker Nancy Pelosi (D-Calif.)? The current poisonous political atmosphere in U.S. politics will hopefully subside, but decisions of such existential consequence must always reflect the primacy of national security over politics.
Moreover, the addition of congressional participation in such a vital national security decision would violate the separation of powers principle. The president alone is vested with the powers of commander in chief. That is not to demean the congressional role in military matters. Congress holds the power to declare war, even though it has not formally done so since World War II; authorizes military use of force short of war through statute; and is charged with authorizing and appropriating funds for the armed forces and setting rules for the administration of military justice. Nevertheless, the power to select the methods of waging war should remain solely with the executive branch.
The second proposal deviates too far from the presidential chain of succession by excluding the vice president and incorporating the attorney general. Currently, in the event that the vice president must assume the presidency, that individual will also presumably rapidly gain control over the nuclear launch codes. Any attempt to reform this decision-making process should not exclude the first person to whom that responsibility falls. The attorney general, although certainly within the executive branch and frequently involved in legal aspects of national security matters, has no day-to-day involvement in military affairs. It seems nonsensical to make the person holding this position party to one of the most consequential military decisions ever made. That is not to discount the virtue of involving legal counsel in the process; such participation is crucial to ensuring that all applicable laws are observed. Yet, it is more prudent to incorporate lawyers who are well versed in assessing the legality of the use of force.
A Supreme Court Role?
The third proposal, involving Supreme Court participation, suffers from the same separation of powers issues and expertise deficiencies that would arise in the proposals just discussed. Indeed, even the Supreme Court itself is unlikely to find its own involvement permissible. In Smith v. Obama,9 the U.S. District Court for the District of Columbia relied on Supreme Court jurisprudence when declining to resolve the question of whether Congress authorized the use of force against the Islamic State group through the 2001 and 2002 authorizations for use of military force on the grounds that it constituted a political question. The court found matters of foreign policy and national security to be textually committed to the political branches of government, meaning allocated to the executive or legislative branches by the Constitution itself. It found inappropriate this kind of judicial second-guessing of the executive branch’s application of the authorizations to facts on the ground during ongoing combat operations. Following that line of case law and reasoning, the Supreme Court would also likely find the question of the use of nuclear weapons to be one that it lacks the expertise to handle and that is surely a political question meant for resolution by the two political branches of government.
Even if the justices were integrated into the decision-making more in their personal capacities as lawyers and scholars, thereby averting the legal issues of precedent and political question, it would be imprudent to extricate the justices from their roles on the court. Although litigation may not be a particularly pressing concern following a massive nuclear attack, smaller-scale uses of nuclear weapons could certainly generate lawsuits as nuclear testing has done in the past. If such suits did arise, those justices who participated in the authorization decision would have a conflict of interest necessitating their recusal.
Although justices recuse themselves from cases periodically, there has never been an entire category of case for which the underlying subject matter would necessarily preclude the Supreme Court from sitting in full. If the justices participated in the proposed manner, it would preclude the court from considering in its entirety a full subject matter, namely the authorization of a nuclear attack and its consequences. Given the importance of this issue, any cases arising from it should receive the consideration of the entire court.
Those proposals calling for consultation with various national security advisers do not provide a sufficient constraint on this critical decision-making process. The underlying premise of the need for reform is to prevent the arbitrary or unwarranted authorization of the use of nuclear weapons. Consultation alone simply does not go far enough in checking the president’s power in cases of nuclear first use, and such discussions would probably occur anyway. Moreover, there is ambiguity in the concept of consultation that further denigrates its utility in this vital national security context. Requiring consensus provides a clear check on the president’s power, one that mere consultation cannot.
Lastly, although Congress’s role in the waging of war is crucial, its involvement in the decision to use nuclear weapons is untenable. Apart from the reasons previously mentioned as to why congressional participation is inappropriate in this circumstance, one of the most compelling reasons for its exclusion is practicality. Any discussion regarding the potential authorization of nuclear attack is of the utmost sensitivity and requires complete secrecy. The size of Congress alone makes it a poor keeper of secrets. If information concerning decision-making on the use of nuclear weapons leaked, the United States would likely face attack first, making this option simply unworkable.
The Untenability of Unilateral Action
Yet, there is surely merit in taking this potentially apocalyptic decision out of the hands of one individual. History shows that, at times, prior presidents acted while impaired, be it John Kennedy under of the influence of pain killers or Richard Nixon intoxicated from alcohol. In the case of Trump, many questioned his decision-making processes, viewing him as emotional and acting on impulse, often ignoring his advisers. Because of Joe Biden’s age—at 78 years old, he is the oldest man to be elected president—some people wonder how long he will be able to bring clarity and stamina to the job. That is enough to merit bringing in others for concurrence on a momentous nuclear weapons decision, but the issue extends far beyond even these examples. No single individual, no matter how wise and temperate, should hold the sole power to potentially initiate the destruction of the world.
In situations where the United States or its allies have been attacked with nuclear weapons, when a decision about retaliating must be made within minutes, the president should retain the sole power to authorize their use. In instances of first use, when the United States has time to decide whether to initiate an attack, the authorization to launch nuclear weapons should require the unanimous consent of the president, vice president, and the defense secretary.
Requiring the approval of the vice president makes sense because that individual is first in the presidential line of succession. Should the president die, resign, become incapacitated, or be removed from office, the vice president assumes the responsibility for the nuclear launch codes and is presumably already familiar with the process. That would also ensure political accountability from the only other U.S. official elected by the entire nation.
Requiring the concurrence of the defense secretary is prudent for several reasons. First, the person in that position is presumed to have the necessary military knowledge to understand the utility and consequences of deploying a nuclear weapon. That individual is also presumed to understand the practicalities of armed conflict and should be involved in assessing this kind of escalation.
Second, the use of force requires compliance with the law of armed conflict. Certainly, in the event that the United States has already suffered or faces an imminent nuclear attack, there would likely be little political resistance to the country’s use of nuclear weapons in self-defense. The trickier analysis would be the legality of the first use of nuclear weapons against an adversary attacking or thought to be preparing an imminent attack against U.S. territory, U.S. forces abroad, U.S. allies, or U.S. interests through conventional means.
Department of Defense lawyers, whether civilian or uniformed judge advocates, regularly make legal compliance assessments regarding the use of force and targeting with conventional weapons. Should the United States find itself contemplating the use of nuclear weapons, it should leverage the expertise of these lawyers. To ensure that the involvement of these lawyers is not subject to the potentially arbitrary inclinations of the defense secretary, the reform process should include a stipulation that the secretary must solicit legal counsel and share those assessments with the president and vice president.
To the extent possible, the secretary of state, who is the most senior cabinet member, should be involved in consultations; but actual approval of the decision should rest with the president, vice president, and defense secretary. Although the secretary of state negotiates nuclear weapons treaties and monitors compliance with these agreements, the Department of State works to prevent conflict rather than to wage war.
In the event that time is of the essence and the vice president and defense secretary are dead, injured, or cannot be contacted, the deputy secretary of defense and the next person in the presidential line of succession in the executive branch—the secretary of state—should have to make a joint decision. The goal should be to give a priority role to the official with the most direct responsibility for nuclear weapons, the defense secretary or deputy secretary.
The gravity surrounding any potential use or even the threat of the use of nuclear weapons necessitates greater constraints on the president’s ability to authorize such action in a first-use scenario. Given that magnitude, these changes should be accomplished through bipartisan legislation. Congress should make it a priority this year.
1. Steve Herman, “Democrats Want Biden to Relinquish Sole Authority for Nuclear Launches,” Voice of America, February 26, 2021, https://www.voanews.com/usa/us-politics/democrats-want-biden-relinquish-sole-authority-nuclear-launches.
2. Geoff Brumfiel, “Pelosi Asks Military to Limit Trump’s Nuclear Authority. Here’s How That System Works,” National Public Radio, January 8, 2021, https://www.npr.org/sections/insurrection-at-the-capitol/2021/01/08/955043654/pelosi-asks-military-to-limit-trumps-nuclear-authority-heres-how-that-system-wor.
3. Ernest J. Moniz and Sam Nunn, “The President and Nuclear Weapons: Implications of Sole Authority in Today’s World,” Nuclear Threat Initiative, December 2019, https://media.nti.org/documents/The_President_and_Nuclear_Weapons_Implications_of_Sole_Authority_in_Todays_World.pdf.
4. Lisbeth Gronlund et al., “An Expert Proposal: How to Limit Presidential Authority to Order the Use of Nuclear Weapons,” Bulletin of the Atomic Scientists, January 8, 2021, https://thebulletin.org/2021/01/an-expert-proposal-how-to-limit-presidential-authority-to-order-the-use-of-nuclear-weapons.
5. Richard K. Betts and Matthew Waxman, “Safeguarding Nuclear Launch Procedures: A Proposal,” Lawfare, November 19, 2017, https://www.lawfareblog.com/safeguarding-nuclear-launch-procedures-proposal.
6. Michael E. O’Hanlon, “Going It Alone? The President and the Risks of a Hair-Trigger Nuclear Button,” Brookings Institution, March 1, 2016, https://www.brookings.edu/blog/order-from-chaos/2016/03/01/going-it-alone-the-president-and-the-risks-of-a-hair-trigger-nuclear-button/.
David S. Jonas is a partner at FH+H Law Firm in Tysons, Virginia. After retiring as a Marine Corps officer, where he served as nuclear nonproliferation planner for the Joint Chiefs of Staff, he served as general counsel of the National Nuclear Security Administration and the Defense Nuclear Facilities Safety Board. He teaches a course he created on nuclear nonproliferation law and policy as an adjunct professor at Georgetown University Law Center and the George Washington University Law School. Bryn McWhorter graduated from the George Washington University Law School in 2021. She has studied and written on nuclear nonproliferation.