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Why won’t Congress remove Trump’s finger from the nuclear button?

Discretion over the use of nuclear weapons is the ultimate presidential power, now in the hands of one of the most unpredictable presidents. New research by Professor Robert Singh looks at why Congress has made no serious efforts to change this.

Last year the world looked on in horror as President Donald Trump exchanged bellicose nuclear threats with North Korea’s Kim Jong-Un, leading onlookers to question why the decision to employ nuclear weapons is entirely subject to presidential discretion – a power that has faced no serious congressional challenges since it was established in 1945.

New research by Robert Singh, Professor of Politics at Birkbeck, University of London, examines the reasons behind the extent of this executive power, and why successive governments have been wary of seeking to change this.

In response to the antagonistic behaviour of Donald Trump and his threats of nuclear action, the US Senate Foreign Relations Committee held hearings to consider possible changes to the president’s authority to launch nuclear weapons in 2017 – the first time in 41 years – with Senator Edward Markey and Congressman Ted Lieu, both Democrats, introducing legislation to delimit presidential discretion. Once referred to the House Foreign Affairs Committee, however, no further action took place. No changes to existing nuclear launch arrangements were recommended. No efforts to limit the president’s capacity to wage nuclear war were established.

Singh says: “The human, economic and environmental costs of even ‘limited’ nuclear exchanges are generally recognised to be catastrophic. Since the decision to use nuclear weapons is so momentous and consequential, what explains the consistent refusal of Congress to restrict the ultimate presidential power of commencing nuclear war?”

His research, published last week in the Journal of Legislative Studies, shows three main reasons that this has not hitherto been tackled.

The first is congressional dysfunctionality. Greater involvement of the Houses of Senate and Representatives in nuclear war decision-making could prove unwise in the parochial and highly partisan environment of Congress. “Partisanship typically plays the major, if not entirely determinative, contribution in debates over authorising military action,” says Singh. Equally, because the prospect of using nuclear weapons is only likely to arise in a crisis situation, it will require a kind of quick decision-making for which Congress is not set up, with lawmakers typically spending more time on the phones raising campaign cash than mastering the details of public policy.

The Congressional Management Foundation notes that congressional staff report having inadequate time and resources to understand, consider and deliberate legislation, which Singh says contributes to their reluctance to adopt further responsibility for military or nuclear action: “They have not wished to pay for the rope that hangs them.”

Secondly, the Constitution sets up a problematic struggle. While Congress has the exclusive power to declare war, it has not done so since 1941, preferring instead to (sometimes) offer authorisation for the use of military force to the president. But that delegation becomes much more problematic in terms of nuclear use. Moreover, it is unclear whether Congress can legitimately constrain the president, as Commander-in-Chief, from using the various weapons it has approved, funded and placed at his disposal.

The third is the relative cost of collective action, which could manifest in many ways: the US may sacrifice a strategic advantage if the President no longer has unrestricted decisional discretion, losing the ability to bluff or threaten hostile foreign powers; a deadlocked Congress may risk a constitutional crisis which would be reputationally damaging on the global stage; and debates and disputes would be played out in public, reported by a fragmented press and unregulated social media, which could increase the risk of US enemies acting upon misguided assumptions. “Legislators typically prefer to avoid blame than claim credit,” says Singh. “It is simpler to leave decisions over the use of military force to the president than to take responsibility and face the possible consequences of an unsuccessful or unpopular war.”

“That the ultimate presidential power is subject to only minimal checks and balances is a distinct anomaly in US policymaking, but deficiencies of the legislative process do not bode well for positive congressional involvement in nuclear war decision-making. Whatever the problems surrounding this particular presidential power, the reasons for congressional inaction remain stubbornly intractable.”

“One alternative would be to add more actors within the executive branch to the process. For example, requiring the Secretary of Defence and Attorney General to sign off on any nuclear launch order would offer additional voices while avoiding the problems associated with legislative action. That could be done either by executive order or through an act of Congress. We will have to await the outcomes of the November midterms to see, if the Democrats take control of one or both houses of Congress, whether lawmakers will finally address this glaring exception to the Constitution’s checks and balances.”

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