He bowls overhand.
I understand that. The policy was crafted during the Cold War when things like smartphones didn't exist. It's outdated. And when I say that Congress rescinded that power, it's because if they didn't pass a bill authorizing the President to launch nuclear weapons in certain cases, then that power would be retained by Congress under Article I.Agreed, but that has always been the case. That is not a power that Congress has rescinded in any way. Anyhow, the second point is that you don't have to imagine a scenario, because there's nothing stopping any POTUS from acting unilaterally to start a nuclear war.
It's worth noting, though, that the President cannot order a nuclear strike by himself. The SECDEF has to agree to it.
There's a lot to peel back here...Imagine POTUS receives intel that China is goading North Korea into launching a limited nuclear strike against our allies in West Pac. Upon launch warning, POTUS decides to launch a retaliatory strike against NK and China. Many would argue that goes beyond self defense. Does POTUS have a constitutional duty to get the Congress to authorize a major escalation?
The Constitution gives Congress the ability to declare war, the power to ratify treaties (Senate), and the power to raise and fund an Army.
From the War Powers Act:
USC 50 section 1541 said:It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations...
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Seems like a pretty reasonable bill that executes Article 1 with very specific limitations on what the President can do and even looks like they thought about your exact scenario. Probably because this was a bipartisan bill passed in the wake of Vietnam to check the President's use of force and had to overcome Nixon's veto. So back to your question:USC Section 1547 said:(a)Inferences from any law or treaty. Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred— ...
(2)from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.
The Senate would have to ratify any international treaty, so the first stop is whether that treaty buys us into taking action AND Congress has passed a subsequent bill authorizing military action pursuant to the treaty per USC 50. Assuming that has happened, then yes the President can execute his strike.
If those two things did NOT happen, then the President (according to the War Powers Act) has to ask for Congressional authorization. USC 50 allows the President to commit forces in American self-defense... and not just self-defense, but an attack creating a 'national emergency'; it does not allow the President to commit forces to protect another country. And our SIOP also does not allow the President to use nuclear weapons in this fashion.
What has happened since is that every President since Nixon has used section 1544 (the requirement to withdraw forces after 60 days) as an implicit blank check to use the military in short-term ops whenever it's politically convenient, ignoring the fact that the reason for committing forces has to meet one of the 3 criteria set in section 1541 (declaration of war, specific statute, or in response to an attack resulting in a national emergency). Congress has done very little to stop it other than the expected political grand-standing by the opposing party. By the time they deliberate about it, the forces are already committed, so backing out is harder than approving funding to finish the job. Until the job takes exponentially longer and costs a lot more money and men than advertised. Based on the language in the section 1541 of the law, I don't think that was the original intent and that's the part of the law that could use revision/clarification. I would also like Congress to change/clarify the meaning of the word "consult" in Section 1542.
And this is where we're at with Trump. Taken in totality, I don't believe it was the intent of the law to allow a President to unilaterally order another country's high-ranking officer to be killed without seeking Congressional approval. But the 60-day clause will be used to argue that Trump had that authority, and he's certainly not the first President to use it. I don't think that the 2001 AUMF and Operation Inherent Resolve authorized him to conduct that strike since they are both very clear about the belligerents and Iran isn't one of them. However, Congress kicked the can with failing to approve an authorization for Operation Inherent Resolve and that set the precedent of blurring the lines on what these bills actually say and who we're supposed to be fighting (the original Iraqi authorization for force was very explicitly against Saddam's forces, which hasn't existed for over a decade, but now we're saying it's good to go to justify taking action against ISIS).
At the end of the day, as you like to say, this is all mental masturbation because the Democrats will cry about it, Republicans will cheer about it, and Sean Hannity will give an open invite to give Trump fellatio on the air while all the other news network hosts call for Trump to be jailed.
I don't buy the 'nukes are a caveat to the normal process' argument. Despite the way they act sometimes, there are a lot of smart people in DC that can (and did) craft a policy that accounts for these situations that doesn't allow the President to just do whatever he wants.The use of nukes is that one caveat to the normal process of properly authorizing force. We've talked ourselves into it being in a special category because of the Cold War need for rapid action in self-defense, but we've overlooked the potential for non-self defense use of nukes, for which there is virtually zero checks on the President's power to wage the most serious kind of warfare. Short of a constitutional amendment, I don't think there's a way to change that.
The unfortunate fact is that most Congressmen simply don't want the responsibility anymore. If they did, the framework is there in plain black-and-white to hold a President accountable for over-stepping his authority.