Almost 50 years after Congress voted on limiting the President’s power to initiate nuclear war, a half century after an intoxicated Commander in Chief reportedly called for nuclear strikes, and 30 years after the Cold War and its conversation about nuclear command and control ended, today the nation is again discussing nuclear launch authority.
In this article, Dakota Rudesill emphasizes that this interdisciplinary conversation is importantly legal, due in part to claims and assumptions that nuclear weapons are constitutionally special—unconstitutional, reserved only to the President, or usable only if Congress has formally declared war. This article recommends instead that Congress make nuclear weapons statutorily special. That is, Congress should recognize the nightmarish risks associated with unfettered executive power over nuclear launch, acknowledge the importance of good process in decision-making, and write specially tailored rules informed by the covert action statute and other national security frameworks.
This article moves the nuclear command and control conversation forward, analyzing developments over the past 30 years in military planning, international security, Supreme Court doctrine, the national security statutory regime, and originalist scholarship. These developments have strengthened the constitutional case for Congress to craft guardrails to prevent abuse of the Commander-in-Chief power and foster careful inter-agency deliberation regarding any contemplated use of nuclear weapons. To catalyze further discussion and inform legislative action, this article includes the text of a model statute: a Nuclear Forces Control Act.
Tensions between the United States and Russian Federation have spiraled in recent years and the outlook for the bilateral nuclear arms control regime has become ever more grim. Comparisons to the early 1980s Cold War are common.
Now, as then, Washington and Moscow are geopolitical adversaries. A key arms control agreement has been abandoned. Nuclear modernization accelerates. Old nuclear hands warn that the risk of nuclear war is rising. Amid growing unease, practitioners and commenters debate nuclear policy priorities, how the arms control process might resume, and how best to reduce nuclear risks.
Dakota Rudsill’s essay analyzes the comparison of our present moment of nuclear destabilization with the Cold War’s frigid and perilous depths in the early 1980s. It argues that the analogy is not perfect but it is instructive. The Cold War teaches that arms control can come back from oblivion. By focusing on the right priorities—strategic stability in particular—and generating ideas now, a pragmatic slate of actionable stability-enhancing proposals can be ready when the geopolitical currents change and prospects for nuclear arms control recover.
This article provides an analysis of the benefits a Comprehensive Test-Ban Treaty and its ratification process would have on international norms, order, and the prosperity of all States involved. In a comprehensive call to action, Matsick recommends an insightful four-sided bargain by four of the largest nuclear powers that would suppress strategic fears and argues that this bargain might be more politically feasible than once believed.
The aftermath of the Second World War and the ensuing nuclear arms race that followed in the Cold War has had an array of impacts throughout the globe and on the international system.
Nuclear nonproliferation and non-testing norms were the expected solution to quash many of those same impacts from bleeding into the future. Rob Matsick focuses the reader on myriad recent developments that have put these norms under siege, and the need for a comprehensive treaty on nuclear testing to resolutely affirm and strengthen the existing legal regime.