Nuclear weapons and the Constitutioni

Barksdale, Yvette 7barksda at
Tue Mar 21 15:54:15 PST 2006

Sandy Levinson writes: re preemptive nuclear strikes: "Would it be
unconstitutional for Congress to attempt to limit the
commander-in-chief's authority in that manner?"




Maybe I am missing something, but is it so clear that the President has
unilateral constitutional authority to order  preemptive nuclear
strikes, without Congressional authorization?  My understanding is that
these unilateral Presidential uses of force have all been done either 1)
in purely defensive circumstances, in which there was no reasonable time
to consult Congress (Lincoln - civil war example), or 2) have  come with
some brand of prior  Congressional approval (ex. Iraq resolutions), or
3) have been ordered in aid of  United States treaty or United  Nations
obligations- (ex. Kosovo, Korean War.), where there has been at least
some international authority regulating the use of force.


Certainly, in the case of the nuclear weapon already headed at us, some
decisionmaker has to have the unilateral power to fire back for
expediency reasons. Perhaps this could be extended to the situation
where intelligence indicated that a nuclear strike was imminent, and
thus justifying quick strike beforehand. (obviously this is a large loop
hole under the current administration's definition of intelligence) 


But, the preemptive strike doctrine, as used by Bush here, seems not
limited to these extreme emergency situations - but rather seems to
incorporate the Iraq model - "nuclear capability" as a basis for
preemptive use of force, nuclear or otherwise.  Is there any
constitutional authority for that where there is clearly time for
Congressional approval? Perhaps the UN model comes to mind as a
justification here - but wouldn't some form of UN authorization be
alternatively required?


Again, is this really a case of unilateral Presidential authority?







Professor Yvette M. Barksdale

The John Marshall Law School

315 S. Plymouth Ct. 

Chicago, IL 60604

(312) 427-2737 (phone)

(312) 427-9974 (fax)



-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Sanford Levinson
Sent: Saturday, March 18, 2006 3:20 PM
To: Sanford Levinson; forwarding for fcross; Miguel Schor;
isomin at
Cc: DavidEBernstein at; CONLAWPROF at;
Mark.Scarberry at
Subject: RE: Nuclear weapons and the Constitutioni


>From Dan Froomkin's column in yesterday's Wasington Post:

: The Federation of American Scientists
notes: "The new National Security Strategy published yesterday by the
White House strengthens the role of nuclear weapons in preemptive
military strikes against terrorists and hostile states armed with
chemical, biological or nuclear weapons. In stronger language than used
in the previous strategy from 2002, the new strategy speaks more
directly about the importance of nuclear weapons and lumps them together
with other military action in a preemption scenario."

For instance, in the section on preemption
<> , the
strategy states: "Safe, credible, and reliable nuclear forces continue
to play a critical role. We are strengthening deterrence by developing a
New Triad composed of offensive strike systems (both nuclear and
improved conventional capabilities)."


So the question is this:  Should the "commander-in-chief" have
unilateral authority to use nuclear weapons, or should Congress be
required to specify such authority or, indeed, to prohibit the use of
nuclear weapons in the absence of such authority unless we have been
subjected to attack by another state (i.e., not a group of terrorists)?
Would it be unconstitutional for Congress to attempt to limit the
commander-in-chief's authority in that manner?  If so, is that not
another argument against the present Constitution?  Or is everyone happy
with unilateral decisionmaking by one individual encaged within the
bubble of the White House?  


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