In practice, in order to make the war official, he needs Congress, but to order the fighting to begin, he does not. If he needs additional military supplies to be purchased, he needs Congress to authorize the spending. In a nuclear war, all the forces are already in place, and no money is needed - it’s just a matter of expending the munitions that were already purchased. Once all the nukes are used, it becomes irrelevant if Congress passes a spending bill - the facilities where the nukes were made will be radioactive ruins, as well as all of the cities where the subcomponents were made, most of the skilled laborers will be dead, the meeting place of Congress destroyed as well as all documents, the U.S. treasury will no longer actually exist so spending power is moot, etc.
Congress decides what is lawful within its enumerated powers. It cannot purport to make a law about a subject that the constitution delegates to another branch.
IMHO, it could no more restrict the President’s power as commander in chief than it could pass a law forbidding the President from vetoing any future tax cuts, or pass a law saying how Justices of the Supreme Court should vote on particular cases.
Congress does have the power to declare war, but as we’ve seen in the past 70 years, hostilities can be had without such a formal declaration.
Although to be fair, that’s exactly the same outcome I would hope for in almost any environment where the same events took place.
For example: An HVAC Technician shows up to a Jo-Ann Fabric and Craft store to check their AC, but he only checked 80% of the list. A store manager pulls a gun on him because he did not do 100% of the list. The other manager calls the guy off. And the manager who pulled the gun was gone the next day. Jo-Ann Fabric and Crafts doesn’t want guys in their craft stores who have mental issues either.
Maybe I missed it above but it is important to understand the arms of government. In a republic the rights and powers of the king are imputed to the President. However this is not true of every republic viz France, where the President is a constitutional representative of the sovereign state but essentially powerless. Just like Queen Elizabeth. In France the Prime Minister launches the rockets.
In the USA the President holds Executive powers the same as a king. He is head of the armed forces and of the federal state. If the President decides to use his powers then he can without reference to Congress or Senate or any Parliament.
That’s hilarious, but it would have been better without the last sentence.
damn, so the “Land Of Confusion” video isn’t accurate??
That is not true. The President’s powers to command the armed forces come straight from the Constitution which supercedes any law Congress passes, courtesy of the Supremecy Clause. Congress can no more constrain his powers than the President can issue an Executive Order constraining the laws that Congress can pass.
When it comes to the President’s Article II powers as Commander-in-Chief, he *is * in fact “above the law,” where “the law” means “a statute passed by Congress.” He’s only not “above the law” in the sense that he must obey the Constitution itself.
Let us attempt a thought experiment.
A. President Jerk, citing his authority under the Constitution as commander-in-chief of the armed forces, orders a Platoon of Marines to immediately secure the building located at 123 Fake St., Anytown, USA, which happens to be a two-story private residence, and immediately execute all persons found inside for treason.
B. President Assface, citing his authority under the Constitution as commander-in-chief of the armed forces, and acting pursuant to a Congressional authorization of the use of military force, orders an Army unit occupying a village in Turduckenstan to affix bayonets and stab every baby under age two in the village, as reprisal for village elders failing to reign in underground puppy mills.
C. President Dolt, citing his authority under the Constitution as commander-in-chief of the armed forces, orders the captain of a submarine to blow up the Verrazano-Narrows Bridge after he made the mistake of eating pizza on Staten Island.
According to your interpretation of the supremacy clause, what would the relevant military personnel do in each of these situations?
From all the documentaries I’ve seen (re: the missile dudes), they don’t question a presidential order. For all they know,Washington has already been nuked and other missiles are flying. Same for subs. The order comes, it’s validated, and the buttons are pushed.
If you think about it, if we allowed the service members to second guess the president, we’d be totally screwed.
Soldiers are allowed to disobey an illegal order from a superior. You’ve quoted clear violations of law above.
Someone in the military can refuse an unlawful order. What constitutes this - I don’t know, but if stabbing (unarmed) babies isn’t one of them - then there is a problem.
If I recall correctly - there are only two things that can be done:
- his cabinet can try and get him removed based on the 25th? amendment
- he can be impeached & convicted
In an emergency situation (as in the president has gone bonkers - not the country has gone to shit) - I don’t see why this can’t be done in hours.
I agree with you. What is it that makes those orders illegal?
I know this wasn’t directed at me, but since I raised the same argument in my apparently invisible post above, I will give it a shot:
#1 and #3 don’t identify military objectives at all, but absurd and hyperbolic use of the military against the domestic populace. These are things which all civilized countries recognize as improper uses of the military and outside the power of the military to undertake.
#2 is a violation of international treaties, negotiated by the President and ratified by 2/3 majority of the Senate.
I am not saying that there wouldn’t be particular uses of nuclear weapons that a subordinate could find illegal. I’m just saying that a general law that requires the President to get a second opinion (and mandatory concurrence) on the use of nuclear weapons violates his powers as CIC.
Further, many of the hypotheticals, including yours, which would support such a policy would call into question the President’s sanity, which could trigger 25th amendment procedures.
The US ratified the Geneva Convention in 1955. Since you brought up the Supremacy Clause specifically …
If the bridge is publicly owned, then this would apply as well.
Andrew Sullivan just said on Sam Harris’s most recent podcast that a President Trump would absolutely have this power. A little Googling and a Vox article from this past summer agrees.
But I just wonder if this is really true. I’m not talking about a single shot at ISIS held territory, or even a few nukes in North Korea. But in the absence of any major crisis or standoff, just deciding out of the clear blue sky to nuke every major city in China and Russia, say. (Or since were talking about Trump, maybe just China.) Basically, picking a fight with a major nuclear power who can nuke all of our major cities. Maybe I’m being naïve, but I just have to think that this sort of order would not be followed, but that what would in fact very quickly be followed would be the provisions of the 25th Amendment.
What is the smallest set of (deranged?) individuals who, working together, would suffice to launch a U.S. nuclear missile? If there’s only a 4-minute window to launch before the Russians wipe out our missile silos, surely there’s a way to bypass the need to wake up Sec’y of Defense? Does the President’s order go to a General who relays it to the silo? How do the silo guys know that General hasn’t blown a gasket?
I guess the arming codes in the President’s “football” are needed, but is there a way for a well-placed technician to hack those codes? What about “Wing Attack Plan R”? 
I’ll guess a complete answer to this question would be too secret, but help please. I need the info for my thriller novel!
One suspects the actual launch protocol is such that there is no useful way for a wayward POTUS to unilaterally decide to say nuke downtown Moscow or anywhere else. Things we don’t know the details of, but may surmise include the mechanism for loading the targets.
The current state of knowledge seems to be that the majority of the SAC ICBM payloads are MIVs with three warheads. Each independently targetable. They are released from the payload bus at appropriate times in flight and are capable of reaching significantly widely separated targets. Working out how to set this up isn’t going to be trivial and probably won’t happen for random targets in real time. My other vague understanding is that the launch sequence includes the upload of the target information to each missile just before launch. Which is useful, as clearly you want some flexibility.
The upshot is that it is highly doubtful that the presidential football contains a code that allows the president to simply say - “nuke Moscow.” More likely there are a set of preset scenarios, and the codes are initiation and conformation codes that set in motion a whole set of SAC command centres to action the entire scenario. The president might be able to order the creation of a set of special one off scenarios, but it won’t be a default, and the mere act of doing so might create some interesting waves.
There isn’t a big red button that unleashes nuclear armageddon. There is more likely a playbook and a set of codes for each play. One might suspect that the playbook has been worked on very carefully for a very long time. A random POTUS is probably going to find it remarkably difficult to get the SAC to have odd plays added at whim.
Sure, that makes sense. But one of those preset plays has got to be enough to inspire a massive MAD counterattack, right?
Actually STRATCOM’s Minuteman missiles have single warheads these days.
Back in the day, they used to have something called the SIOP- Single Integrated Operations Plan that detailed the targeting options, procedures, etc… for nuclear war. These days it’s been replaced by an Operations Plan (OPLAN 8010, Strategic Deterrence and Global Strike) which does the same thing.
Basically the impression I get is that if it’s something we’ve planned for in the OPLAN, there are predefined targets, forces and procedures for nuking it.
If not, then they have to gin something up on the fly, which might take longer. In other words, we may not have a section in the OPLAN for nuking Hobart Tasmania, so if we chose to do so, they’d likely have to sail a SSBN within range and then enter the targeting coordinates, etc…
But I’d guarantee we have a OPLAN 8010 entry for nuking just about anything and everything in Russia, North Korea and China.
(Nvm - wrong post)