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Nuclear War Powers

Published online by Cambridge University Press:  27 February 2017

Peter Raven-Hansen
Peter Raven-Hansen*
Affiliation:
George Washington University National Law Center
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Extract

As the Constitution enters its third century, its framework for the exercise of war powers is under siege. Presidential exercises of war powers to repel attacks, rescue lives, protect property, retaliate and threaten have posed the most persistent and visible challenge to that framework. But an equal theoretical challenge is posed by a power that the President has used only twice, the nuclear war power. Part I of this essay describes that challenge. Part II evaluates the constitutionality of the existing distribution of nuclear war powers. Part III identifies—but does not explore—alternatives.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 786 - 795
Copyright
Copyright © American Society of International Law 1989

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References

1 See generally First Use of Nuclear Weapons: Under the Constitution, Who Decides? (P. Raven-Hansen ed. 1987) [hereinafter Who Decides?]; Nuclear Weapons and Law, pt. II (A. Miller & M. Feinrider eds. 1984); Goldstein, The Failure of Constitutional Controls Over War Powers in the Nuclear Age: The Argument for a Constitutional Amendment, 40 Stan. L. Rev. 1543 (1988); Miller & Cox, Congress, the Constitution and First Use of Nuclear Weapons, 48 Rev. of Pol. 211 and 424 (1986).

2 See, e.g., L. Henkin, Foreign Affairs and the Constitution 50–54, 80–81, 100–08 (1972); W .T. Reveley, War Powers of the President and Congress (1981); A. Sofaer, I War, Foreign Affairs and Constitutional Power: The Origins, ch. 1 (1976); Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672 (1972).

3 See, e.g., D. Ford, The Button 132 (1985).

4 Quoted in id. at 52.

5 See, e.g., Kaiser, Leber, Mertes & Schulze, Nuclear Weapons and the Preservation of Peace, 60 Foreign Aff. 1157, 1158 (1982) (distinguishing first strike and first use) [hereinafter Kaiser]. Of course, the United States has never had a declared policy of first strike in the sense of an unprovoked offensive attack. Id. But the distinction between such a first strike and a strike to forestall an imminent attack is not sharp. The recent U.S. emphasis on developing counter-force capabilities—the ability to hit hard targets such as the enemy missile force in its silos—may have further blurred this distinction. See Ravenal, Counterforce and Alliance: The Ultimate Connection, Int’l Security, Spring 1982, at 26, 30. See generally Miller & Cox, supra note 1, at 212–13. Finally, some analysts have argued that whatever our declared policy, our “anticipated operational practice” is a preemptive strike. See D. Ford, supra note 3, at 11–12, 106–07.

6 See, e.g., Bundy, Kennan, McNamara & Smith, Nuclear Weapons and the Atlantic Alliance, 60 Foreign Aff. 753, 754 (1982) (“A major element in every doctrine has been that the United States has asserted its willingness to be the first—has indeed made plans to be the first if necessary—to use nuclear weapons to defend against aggression in Europe”) [hereinafter Bundy]; D. Charles, Facing Up to First Use: Pitfalls of NATO’s Nuclear Plans II-3, II-6–7 (Federation of American Scientists draft staff study, 1985). Possible scenarios for U.S. use of nuclear weapons are discussed in Stone, Which Nuclear Scenarios Are at Issue?, in Who Decides?, supra note 1, at 17.

7 D. Ford, supra note 3, at 121. See also Quester, Presidential Authority and Nuclear Weapons, in First Use of Nuclear Weapons: Preserving Responsible Control: Hearings Before the Subcomm. on International Security and Scientific Affairs of the House Comm. on International Relations, 94th Cong., 2d Sess. 212, 213–14 (1976) [hereinafter First Use Hearings].

8 D. Ford, supra note 3, at 143; Quester, supra note 6, at 214–15.

9 D. Ford, supra note 3, at 45–46. Cf. First Use Hearings, supra note 7, at 166 (quoting Henry Kissinger as implying that launch-on-warning policy has been adopted).

10 An antecedent question is whether the authority to use nuclear weapons is vested anywhere in the Government. A few scholars have tentatively advanced the theory that the Preamble to the Constitution and the Due Process Clause prohibit any government official from deciding on nuclear war because of its threat to life. See, e.g., Miller, Nuclear Weapons and Constitutional Law, in Nuclear Weapons and Law, supra note 1, at 235. This theory has found little scholarly, and no judicial, support to date. Other scholars argue that international law prohibits the use of nuclear weapons. See Nuclear Weapons and Law, supra note 1, pt. I. But even if there were a consensus about the international illegality of nuclear weapons—and none has emerged—customary international law would not override the joint authority of Congress and the President. See Raven-Hansen, The Constitutionality of the FAS Proposal: A Critical Summary, in Who Decides?, supra note 1, at 211, 212 & nn.10–11 (citing authorities).

11 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (footnote omitted).

12 See generally Stone, supra note 6, at 16–17; L. Henkin, supra note 2, at 52; Franck, The President, the Constitution and Nuclear Weapons, in Nuclear Weapons and Law, supra note 1, at 363, 366–67.

13 The NATO Treaty defines such an attack as an attack on the United States. North Atlantic Treaty, Apr. 4, 1949, Art. 5, 63 Stat. 2241, TIAS No. 1964, 34 UNTS 243. The Treaty alone, however, is not authority for presidential first use and engagement in nuclear war because it expressly invokes our “constitutional processes,” id., Art. 20, and because it has never received the bicameral approval required for a declaration of war. See generally Glennon, The NATO Treaty: The Commitment Myth, in Who Decides?, supra note 1, at 51.

14 See, e.g., Franck, supra note 12, at 365; Turner, Congressional Limits on the Commander in Chief: The FAS Proposal, in Who Decides?, supra note 1, at 37, 39.

15 See, e.g., Bundy, supra note 6, at 757; Charles, supra note 6, at 1-6, II-6 (quoting Secretary of Defense R. McNamara), 11-13, 11-15, 11-17; P. Bracken, The Command and Control of Nuclear Forces 92, 177 (1983).

16 Bundy, supra note 6, at 757.

17 First Use Hearings, supra note 7, at 184 (statement of Deputy Assistant Secretary of Defense J. Wade, Jr.).

18 See, e.g., Charles, supra note 6, at 11-15, V-7, VII-14; P. Bracken, supra note 15, at 92.

19 P. Bracken, supra note 15, at 164.

20 Congressional Research Service, Authority to Order the Use of Nuclear Weapons, 94th Cong., 1st Sess. 2 (Comm. Print 1975) [hereinafter Authority to Order].

21 See, e.g., Charles, supra note 6, at III-1 (quoting General Bernard Rogers, Supreme Allied Commander, Europe) and IV-4 (same).

22 Nunn, Responding to Gorbachev, Wash. Post, Dec. 18, 1988, at C7, col. 2.

23 See generally Stone, Presidential First Use Is Unlawful, in Who Decides?, supra note 1, at 3.

24 42 U.S.C. §2121 (b)(1) (1982), cited in support of presidential nuclear war power in letter from R. Niederlehner, Acting General Counsel, Department of Defense, to Federation of American Scientists (Sept. 25, 1975) (on file with the author).

25 See Memorandum from A. Adler to A. Locklear (ACLU Comiti. on Nuclear Weapons & Civil Liberties), re: Atomic Energy Act and Presidential Authority to Order Use of Nuclear Weapons (December 1984) (on file with the author).

26 See McNamara, The Military Role of Nuclear Weapons: Perceptions and Misperceptions, 62 Foreign Aff. 59, 62–65 (1983) (tracing the policy to 1952).

27 See Dellums v. Reagan, No. C 87–2587 JPV, slip op. at 2 (N.D. Cal. Dec. 7, 1987) (dictum) (“At the very least, Congress has tacitly approved the ‘first use’ policy through various appropriations and authorization measures”). See also infra text accompanying note 38. See generally Raven-Hansen, supra note 10, at 214–16 (further development of congressional acquiescence argument).

28 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). See generally Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U.L. Rev. 109 (1984).

29 Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., dissenting).

30 See Miller & Cox, supra note 1, at 232; Van Alstyne, Congress, the President, and the Power to Declare War: A Requiem for Vietnam, 121 U. Pa. L. Rev. 1, 15–17 (1972).

31 See Synar v. United States, 626 F.Supp. 1374, 1385 (D.D.C.), aff’d sub nom. Bowsher v. Synar, 478 U.S. 714(1986).

32 Lichter v. United States, 334 U.S. 742, 778–79 (1948).

33 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). See generally Tiefer, The FAS Proposal: Valid Check or Unconstitutional Veto?, in Who Decides?, supra note 1, at 143, 149–50.

34 Tiefer, supra note 33, at 152.

35 50 U.S.C. 81547(a)(1) (1982).

36 See notes 32 and 33 supra. See generally 3A Sutherland Statutory Construction §71.09 (Sands 4th ed. 1989).

37 See Marcello v. Bonds, 349 U.S. 302, 310 (1955) (construing 5 U.S.C. §559 (1982), providing that a subsequent statute “may not be held to supersede or modify this subchapter … except to the extent that it does so expressly” (emphasis supplied)).

38 118 Cong. Rec. 12,456 (1972).

39 Id. at 12,453.

40 100 id. at 11,304 (1954) (statement of Rep. Holifield).

41 3 U.S.C. §301 (1982). Any predelegations of nuclear war power are classified and there-fore unpublished. For the argument that any predelegation is consequently at least ultra vires, if not inherently unconstitutional, see Miller & Cox, supra note 1, at 238–41; and Goldstein, supra note 1, at 1584. Per contra, it can be argued that the Atomic Energy Act overrides the publication requirement for presidential subdelegation by authorizing the classification of data, 42 U.S.C. §2162 (1982), and providing that no government agency shall take any action inconsistent with its classification provisions, id. §2166.

42 3 U.S.C. §302 (1982).

43 Lichter v. United States, 334 U.S. 742, 782 (1948).

44 Authority to Order, supra note 20, at 3–4.

45 Federal courts have held nonjusticiable a complaint asserting that an alleged launch-on-warning policy unconstitutionally predelegates the nuclear war power. See Johnson v. Weinberger, No. CV 86–3334–SW (N.D. Cal. Apr. 29, 1987) (dismissing complaint on political question grounds), aff’d, 851 F.2d 233 (9th Cir. 1988).

46 Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) (recognizing congressional power to authorize the limited quasi-war with France); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (Marshall, C.J.) (“congress may authorize general hostilities … or partial hostilities”). See L. Henkin, supra note 2, at 108 (“Congress can control the conduct of the war it has authorized”).

47 See generally Who Decides?, supra note 1, pts. III–IV.

48 462 U.S. 919(1983).

49 Nixon v. Administrator, General Services, 433 U.S. 425, 443 (1977) (upholding statute regarding disposition of presidential papers over President’s objection). See also Morrison v. Olson, 108 S.Ct. 2597 (1988) (upholding statute creating independent counsel); United States v. Nixon, 418 U.S. 683 (1974) (enforcing judicial subpoena over President’s claims of executive privilege); Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (upholding statutory “for cause” restrictions on President’s removal of executive appointee). See generally Raven-Hansen, supra note 10, at 224–26.

50 The President has recently agreed to just such an arrangement in securing enactment of nonmilitary assistance to the Nicaraguan contras. See Wash. Post, Mar. 26, 1989, at Al, col. 3. A President’s agreement to abide by a committee decision does not confer an unconstitutional veto power on the committee because the committee’s decision has no legal effect. See City of Alexandria v. United States, 737 F.2d 1022 (Fed. Cir. 1984) (rejecting a Chadha attack on a comparable executive policy of abiding by the decision of a congressional oversight committee or its chair on the ground that the latter has no legal, though “great moral effect”).

51 See Moore, The Constitution, Nuclear Weapons, and Deterrence: An Analysis of the FAS Proposal, in Who Decides?, supra note 1, at 23.

52 See Kaiser, supra note 5, at 1169–70; G. Allison, A. Carnesale & J. Nye, Jr., Hawks, Doves and Owls 227, 236 (1985).