President's Day Sale: Half Off the Constitution

By Nancy Parrish

This piece was originally published in Inkstick.


For many of us, President’s Day means little more than enjoying a three-day weekend getaway or taking advantage of deep discounts on appliances and mattresses. Originally enacted in 1885 as a celebration of George Washington’s birthday, the holiday has evolved into a day to celebrate and remember the accomplishments of all US Presidents. This year, though, I’d suggest that it is a good opportunity to take a minute to think about the presidency itself.


The framers of the Constitution were deliberate in crafting what powers belong with the office of the presidency. They felt it was critical to guard against an all-powerful leader with the ability to make unilateral decisions – particularly in matters of war. While the Constitution designates the President as the Commander-in-Chief, the ability to declare war was very purposely left to Congress. However, over time this balance of power has eroded. The President’s authority to take our nation to war is not at all what the founders envisioned, and this expansion of presidential power is certainly nothing to celebrate.


This shift began during the Cold War when, out of concern that there would be only minutes to respond if the former Soviet Union launched a nuclear attack on the US, we developed a set of protocols and a system that was designed explicitly to allow the President to launch nuclear weapons at his or her sole discretion. The assumptions were that this action would only ever occur in response to Soviet aggression, that the President would certainly consult with advisors as time allowed, and that he or she would fully grasp and appreciate the gravity of such an action.


In reality, the President of the United States has the ability to launch a nuclear weapon in response to an attack – nuclear or otherwise – or as a first strike for any, or no, reason. Launching a nuclear weapon is, in effect, an act of war. And no one, including Congress, can legally stop them.


The true danger of this arrangement was made terrifyingly clear when in 1974 Richard Nixon, who was drinking heavily and caught up in the Watergate scandal, told reporters that “I can go back into my office and pick up the telephone and in 25 minutes 70 million people will be dead.” In response to this threat, his own Secretaries of Defense and State instructed the Joint Chiefs of Staff that any “emergency” order issued by President Nixon should be cleared by them first. Though no such order was ever issued, it is unclear (and terrifying) to think of what the outcome of such an action might have been. What is clear is that neither his key advisors nor the Joint Chiefs would have had any legal authority to stop him.


This expansion of presidential power rose to new heights in the days following the attacks of September 11, 2001, when Congress passed the Authorization for the Use of Military Force (AUMF). In just a few words, this hastily-passed piece of legislation gave the President the authority to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


Representative Barbara Lee (D-CA) cast the lone dissenting vote against the AUMF, warning that it could start “an open-ended war with neither an exit strategy nor a focused target.” And how right she was. Over the last 18 years, the AUMF has been used by three different presidents to authorize US military action in 21 countries.


In an attempt to remedy at least one of these ills, a number of state and federal legislators from around the country have introduced legislation repealing AUMF and recognizing that no one person – not even the President of the United States – should have the ability to launch a potentially civilization-ending nuclear weapon on his or her own.

At the federal level, Representative Barbara Lee (D-CA) just introduced “To repeal Public Law 107-40,” and Representative John Garamendi (D-CA) introduced “To repeal the Authorization for Use of Military Force.” Similar bills have been introduced in past congresses to no avail.


Senator Elizabeth Warren (MA) along with Representative Adam Smith (D-WA) introduced “The No First Use Act,” which states that it is the policy of the United States not to launch a nuclear weapon first. Taking it one step further, Representative Ted Lieu (D-CA) and Senator Ed Markey (D-MA) introduced “Restricting First Use of Nuclear Weapons Act of 2019,” which stipulates that the President does not have the authority to launch a nuclear first-strike without Congressional approval and that “a first-use nuclear strike conducted absent a declaration of war by Congress would violate the Constitution.”


At the state level, 12 states (NH, IA, WA, MD, VT, MN, GA, IL, MA, NJ and OR*) have introduced resolutions in the last year that call for checks on the President’s ability to start a nuclear war. Last year, California led the way by passing not one, but two resolutions demanding that Congress reclaim its authority.


This year, while enjoying the President’s Day holiday, consider the power the President has to make it your last. Congress has ceded its power for too long. It’s time to restore the balance our Constitution calls for.


*Oregon Senator Michael Dembrow and Representatives Linda Sanchez and Alissa Keny-Guyer are set to submit the bill on February 22nd, 2019.

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