Congress, the Constitution, and First Use of Nuclear Weapons
This article analyzes the constitutional problems involved in “first use” of nuclear weapons. Its organizing principle is that Congress has a constitutional duty to ensure such control over nuclear weapons that first use (and first strike) is proscribed. After demonstrating that the Constitution requires collective decision-making in important policy decisions, it is recommended that Congress retrieve its delegated power over nuclear weaponry, and also establish a “council of state” within the office of the presidency with which the president must consult before taking important decisions, including those involving nuclear warfare. The council would take a sober “first look” at proposed policies, but the ultimate responsibility would be the president's.