A friend recently told me she looked at a globe to see how far Albuquerque is from North Korea. Her comment troubled me. Our president has used threatening language against a despot that could incite a civilization-threatening nuclear war. In our constitutional democracy, Congress can pass a law to keep the president’s finger off the nuclear button. It is imperative that Congress keep us safe by reforming the process by which our president may exercise a first-strike nuclear option.
Congress is currently considering a bill that would do just that: Restricting First Use of Nuclear Weapons Act of 2017, introduced by Rep. Ted Lieu, D-Calif., and Sen. Ed Markey, D-Mass. This bill prohibits the president from using the armed forces to conduct a first-use nuclear strike unless it is conducted pursuant to a congressional declaration of war expressly authorizing the strike.
Our Constitution states that the president is the commander in chief of the military, “when called into the actual Service of the United States.” The role gives the president the power to repel attacks against the United States and the responsibility to lead our armed forces. Under a vestige of the Cold War, the president has sole control of a nuclear strike. Yet, the Constitution grants Congress the sole power to declare war and appropriate money to fund the conflict. The division of the war power between Congress and the president is designed to ensure that no president leads us into war without support of the people’s representatives in Congress. Given President Trump’s propensity toward inflammatory language and recent threats of preemptive military action in North Korea and Venezuela, this is no abstract point.
The Constitution creates a framework for Congress to stop presidential abuses of power, which is precisely what the Lieu-Markey bill would do. Congress previously curtailed the executive branch as a result of the Vietnam conflict in the 1960s. Congress passed, over President Nixon’s veto, the War Powers Resolution, which imposed a new limit on presidential use of military force: the president must notify Congress within 48 hours of committing armed forces to action. It forbids armed forces from remaining in combat for more than 60 days, with an additional 30-day withdrawal period, unless Congress authorizes the use of military force or declares war. The resolution has made our deployment of troops more transparent by requiring Congressional oversight when our military troops are deployed.
Normally, we would want a commander in chief to have all potential options to consider in determining how to protect our country and our allies. Strategically, it is important not to reveal that an option for responding to atrocities is off the table. However, because President Trump has shown that he is narcissistic, impulsive and unconstrained by normal rules of diplomacy, international law or even the Constitution, it is Congress’ duty to once again exercise its check on presidential power.
Given their own experiences having served in the military, Rep. Lieu and Sen. Markey know just how dangerous President Trump’s rhetoric of “fire and fury like the world has never known” is to our troops. As we learned from Hiroshima and Nagasaki, nuclear bombs are horrifyingly different from conventional weapons. As the world’s lone superpower, our democratic institutions must step into service to preclude a single man’s narcissistic impulses. This bill recognizes that nuclear weapons are so catastrophic to all life, and to our environment, that a first nuclear strike is morally unacceptable without the extraordinary consideration and deliberation by Congress.
It is time for Congress take up this bill to institute a more deliberative approach and to supplement the War Powers Resolution by precluding irrational first-strike use of nuclear weapons. I urge all members of Congress to take this responsibility seriously. I ask all who fear the potential misuse of nuclear weapons to urge their congressional representatives to support this bill.
Antoinette Sedillo Lopez spent 27 years as a law professor, eight of them as associate dean of the University of New Mexico School of Law.