Legislation Limiting the President’s Power to Use Nuclear Weapons: Separation of Powers Implications

"Recent proposed legislation that would place limitations on the President’s power to employ nuclear weapons has prompted interest in questions related to the constitutional allocation of power over the United States’ nuclear arsenal. This memorandum examines the constitutional separation of powers principles implicated by legislative proposals that restrict the President’s authority to launch nuclear weapons.1
I. Recent Legislation and Proposals to Restrict First-Use of Nuclear Weapons
 Legislation proposed in the 115th Congress would limit the President’s ability to order a “first-use nuclear strike.”2 On January 24, 2017, identical versions of a bill titled the Restricting First-Use of Nuclear Weapons Act of 2017 (Restricting First-Use Bill) were introduced in both chambers of Congress. The Restricting First-Use Bill would prohibit the President from using the “Armed Forces of the United States to conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.”3 The term “first-use nuclear strike” is defined as an “attack using nuclear weapons against an enemy that is conducted without the President determining that the enemy has first launched a nuclear strike against the United States or an ally of the United States.”4 While some have advocated that the United States adopt a broader “no-first-use” policy and pledge never to use nuclear weapons first against a nuclear-armed adversary,5 the Restricting First-Use Bill would address the President’s ability to act as the sole decision maker when authorizing use of the nuclear arsenal. The Bill would not address overall U.S. policy on first-use, nor would it modify directly the technical mechanisms through which nuclear weapons are employed..."
President and nuclear weapons