Posted by Orin Kerr:
A President's Lawful Authority to Respond to a Nuclear Attack:
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1230074634
In a [1]recent interview with Chris Wallace, Vice President Cheney
made the following claim about a President's ability to launch a
counterstrike if the U.S. came under nuclear attack:
The president of the United States now for 50 years is followed at
all times, 24 hours a day, by a military aide carrying a football
that contains the nuclear codes that he would use and be authorized
to use in the event of a nuclear attack on the United States. He
could launch a kind of devastating attack the world's never seen.
He doesn't have to check with anybody. He doesn't have to call the
Congress. He doesn't have to check with the courts. He has that
authority because of the nature of the world we live in.
Over at [2]Slate, Dahlia Litwick calls this claim a blunt
demonstration of "the Nutty Version of the Unitary Executive Theory,"
and describes it as Cheney's "biggest whopper of the week":
The claim that "the nature of the world we live in" warrants a
perennially unchecked executive branch can be delivered with all
the gravitas in the world, and it still amounts to constitutional
nonsense.
Notwithstanding the difference between an unchecked executive and a
unitary one -- that is, the difference between executive powers that
cannot be controlled by the other branches and an executive branch in
which whatever executive power exists is ultimately contollable by the
President -- isn't Cheney correct that, under the usual understanding
of Article II, a President has this power in the event of a nuclear
attack?
I'm not an expert in the caselaw here, but I had thought that this
was settled in [3]The Prize Cases, 67 U.S. 235 (1862):
If a war be made by invasion of a foreign nation, the President
is not only authorized but bound to resist force by force. He does
not initiate the war, but is bound to accept the challenge without
waiting for any special legislative authority. And whether the
hostile party be a foreign invader, or States organized in
rebellion, it is none the less a war, although the declaration of
it be 'unilateral.' . . .
Whether the President in fulfilling his duties, as
Commander-in-Chief, in suppressing an insurrection, has met with
such armed hostile resistance, and a civil war of such alarming
proportions as will compel him to accord to them the character of
belligerents, is a question to be decided by him, and this Court
must be governed by the decisions and acts of the political
department of the Government to which this power was entrusted. "He
must determine what degree of force the crisis demands."
To be clear, I am not making a normative argument about what the law
should be. I am not defending the Vice President's view of Article II
more broadly, either. Rather, I'm just wondering if it's Vice
President Cheney, rather than Dahlia Litwick, who has better described
the mainstream understanding on this particular legal question.
References
1. http://www.foxnews.com/story/0,2933,470706,00.html
2. http://www.slate.com/id/2207070/pagenum/all/#p2
3. http://supreme.justia.com/us/67/635/case.html
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