Actually, both of those arguments are flawed. But in spite of that John Yoo may, in fact, be right on at least one issue of consequence. Here we go: can the President of the United States order a nuclear strike without Congressional approval? John Yoo says yes; ThinkProgress and Crooks & Liars both say no. John Yoo is right.
To make this question meaningful, we should first break it down further. By virtue of Youngstown Tube & Sheet Co. v. Sawyer, 343 U.S. 579 (1952), we should really ask three questions, of which only one is actually complicated:
- In the presence of Congressional approval, can the President order a nuclear strike?
- In the absence of Congressional action, can the president order a nuclear strike?
- In the presence of express Congressional disapproval, can the President order a nuclear strike?
Only by answering all three can we come to a real answer. On questions #1 & 2, Congressional permission only ever arises in the context of authorizations for military force (AUMFs). These documents are generally construed broadly — a principle for which, ThinkProgress’ analysis notwithstanding, Hamdi itself stands (“Congress has in fact authorized Hamdi’s detention, through the AUMF”). Especially because any authorization for the use of military force is generally itself broad (e.g., “the President is authorized to use all necessary and appropriate force”), such generalist documents would necessarily be construed to include the authority to deploy nuclear weapons. Thus we can immediately answer questions #1 & 2 in the affirmative.
That brings us to question #3 — in the presence of express Congressional disapproval, can the President order a nuclear strike?
To answer this, again, we have to give some context to what we mean by Congressional disapproval. As Yoo properly notes, Congress could “starve the beast” — slash all defense appropriations — to halt any presidential action in the military sphere. But our question refers to specific policy constraints, so we must invent such specific constraints, and then analyze them.
ThinkProgress seems to assume that some express constraint on the President’s nuclear authority already exists, but no such statute has ever been drafted, much less signed in to law. In fact, there are no significant statutory limitations placed on the President’s decisions regarding how to deploy military force. True, in 1973, Congress passed a joint resolution, the War Powers Resolution, which seems to require Congressional authorization for any war or projection of American military power that lasts beyond a set period of days. But the constitutionality of this provision is in no sense clear, and even assuming its perfect validity, it only limits when the President can go to war, not how and using what weapons.
Nor could it go farther. Congress can declare war (U.S. Const., Art. I, § 8, cl. 11) and “make rules for the government and regulation of the land and naval forces” (U.S. Const., Art. I, § 8, cl. 14) (think UCMJ), but the Constitution commits decisions about the specific waging of specific wars to the President, and no-one else (“The President shall be commander in chief of the Army and Navy of the United States”) (U.S. Const., Art. II, § 2, cl. 1). No decisionmaking authority more closely typifies the commander-in-chief power than the right to determine appropriate military responses to identified crises; accordingly, the question of when to use nuclear weapons is, necessarily, textually committed explicitly and solely to the discretion of the American President.
This reading is neither liberal nor conservative; it’s just accurate, the way the commander-in-chief was meant to function (read over Federalist #70), and perfectly in line with our history. As the Founders recognized, wars are not to be waged by committee. Every significant post-federal military activity in our history — from the Gettysburg campaign, through the Normandy invasion & Hiroshima, and even to the Cuban Missile Crisis — has been debated, decided, and implemented exclusively at the Cabinet level or above. How could it be otherwise?
It’s true that this line of argumentation leads to the conclusion that, in and probably out of war too, a single man or woman sitting behind a single desk could initiate Armageddon, with no legal check or balance. This needn’t be too scary, though: given the speed at which wartime decisions must be made, especially when the decisions involve nuclear weapons, any legal limit would be purely illusory anyways. No federal court would convene to litigate a preliminary injunction restraining the President’s use of weapons (who would have standing, anyways?), and no Congress would sit in emergency session to decide how to respond to plausible reports of an impending nuclear first strike against the United States. In some isolated cases, democracy implies a complete and perfect trust in the man or woman we’ve chosen to act in all of our names. The President’s authority to use nuclear weapons is one of those cases.