Should Congress Take Away Trump’s Authority to Pre-Emptively Launch a Nuclear Strike?

Over the past few months, members from both chambers of Congress have expressed doubt over whether President Donald Trump should retain the presidential authority to unilaterally launch a pre-emptive nuclear strike.

His temperament, childish Twitter rants about North Korean leader Kim Jong Un and reckless language over nuclear use have frightened some lawmakers into introducing bills restricting his power.

Sen. Ed Markey (D-Mass.) and Rep. Ted Lieu (D-Calif.) have introduced bills that would restrict the president’s singular authority to call for a pre-emptive nuclear strike without a declaration of war by Congress. On Wednesday, Rep. Adam Smith (D-Wash.) introduced a one-sentence bill (pdf) stating that the United States should not use nuclear weapons first.

“It is the policy of the United States to not use nuclear weapons first,” the bill reads.

The rationale is clear: No one person should have the power to kill millions of people in less than 30 minutes—especially someone as reckless as Trump.

Over the past five decades or so, it has generally been accepted that the power to launch a nuclear strike rests in the hands of the president. It is a curious arrangement because a nuclear strike, by default, is a declaration of war, something that Congress is constitutionally required to authorize.

Some nuclear arms experts see it differently. Robert Kehler, former commander of the United States Strategic Command, told the Senate on Tuesday, “Conflicting signals can result in loss of confidence, confusion or paralysis in the operating forces at a critical moment.”

In the case of responding to a nuclear attack by a foreign adversary, that would be true. Proponents of the bills are more concerned that Trump could call for an unnecessary nuclear attack without cause and there is nothing in writing to check him.

“There is no way you can use nuclear weapons and not read that as a declaration of war,” said Tom Collina, director of policy at Ploughshares Fund, a Washington, D.C.-based organization whose goal is to eliminate nuclear weapons.

“We need to clarify the authorities the president has,” Collina said. “This legislation is necessary to clarify Congress’ view that you may not use nuclear weapons first without approval of Congress.”

Article I, Section 8, Clause 11 of the Constitution was written at a time when nuclear weapons didn’t exist. It is also likely that none of the signees anticipated that someone like Trump would be elected to oversee what has become the world’s most powerful military.

In December, Trump threatened a nuclear arms race, even though the United States commands the world’s most powerful nuclear arsenal and, with the exception of Russia, no other nuclear power comes close to matching it.

While North Korea is in the final stages of building a viable nuclear weapon, many experts believe that Pyongyang is using its capabilities as a bargaining chip rather than for an actual attack. But Trump’s irresponsible threats to meet North Korea with “fire and fury,” coupled with reports of the then-candidate asking foreign-policy advisers why he can’t use nukes, have policymakers concerned.

Even during the Cold War, when bluster of war was at its highest, no one at the Kremlin or the White House was as reckless or deemed nearly as incompetent as Trump. Most Soviet and U.S. leaders have had a healthy respect for nuclear weapons. The Cuban missile crisis, the closest two nations have come to nuclear war, saw President John Kennedy and USSR Premier Nikita Khrushchev come to a peaceful resolution after 13 days of gut-wrenching negotiations.

North Korea’s advancements in ballistic missiles capable of carrying nuclear warheads have come faster than expected. Once Pyongyang gets warhead re-entry down, it’ll have completed the full process of becoming a nuclear state.

Presidents over the past two decades have tried diplomacy to slow North Korea’s program, to no avail. Bill Clinton’s administration came close to ending North Korea’s program with a package that included nonproliferating reactors and natural gas, but Washington politics killed it. George W. Bush placed North Korea on his “axis of evil,” essentially giving diplomacy little chance at all to succeed. Barack Obama’s efforts failed, too.

During none of those years did America worry about the White House stoking tensions with unnecessary rhetoric as Trump does, forcing even some Republicans to ask if the president’s nuclear powers need to be curtailed. Indeed, even if Congress votes in favor of stripping the president of sole authority of pre-emptive first-strike power, it still will not address the most important problem: that nukes exist in the first place.

Let’s say if, for some reason, Congress approves legislation restricting the president from calling a pre-emptive nuclear strike (for the record, this is very unlikely). That still can’t stop the president from ordering his generals to do so, because the president is commander in chief, not Congress.

“A lawyer may say, ‘Mr. President, if you execute that option, that may be illegal and we can have the trial in the bunker after the nuclear war,’” Jeffery Lewis, director of the East Asia Nonproliferation Program at Middlebury Institute of International Studies at Monterey in California. “I don’t want to be too negative about the bill[s] because we should be talking about it. I just do not know if the bill[s] will ultimately solve our problem.”

Any bill aimed at checking any president’s power to call for a pre-emptive strike (which is not the same as calling for a defensive response) is a legitimate debate. The issue is that it does not solve the problem, simply because the nuclear option is available.

While lawmakers craft legislation challenging the president’s singular power to call for a nuclear strike, even more efforts need to be invested into reducing nuclear weapons altogether.

As late as the end of the 1980s, there were more 70,000 nuclear warheads in existence, mostly between Russia and the United States. Now there are around 15,000. Reasonable Republican and Democratic presidents have cut away at stockpiles over the decades, with Presidents George H.W. Bush and George W. Bush disposing of most of them; Bill Clinton comes in at No. 3 for cutting the nuclear stockpile during a presidency.

Trump’s dangerous warmongering certainly raises the stakes in any debate about the need to curtail a president’s power to call for nuclear war, but this is bigger than any one person. So while the lawmakers and critics rightfully fight to curtail the president’s power to destroy human civilization, we should also pressure Congress to engage in diplomacy to chip away at America’s and Russia’s stockpiles so that one day, we won’t have to deal with this problem.

“If the idea of nuclear weapons in Donald Trump’s tiny little hands frightens you, it might be that you don’t like nuclear weapons all that much,” Lewis said. “Maybe the issue here is not Trump with nuclear weapons. It may well be that any one human having this power is absurd. If that’s the case, maybe we shouldn’t have nuclear weapons.”