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Abstract

This article argues that Congress can exercise its constitutional war powers to enact a law restricting the President from using nuclear weapons first. The article contends that using a nuclear weapon is qualitatively different from conventional warfare and that the first use of nuclear weapons marks a decision to enter into war. Therefore, nuclear first use is not a battlefield decision within the President’s commander in chief power but rather a choice to enter the United States into a new type of conflict that could pose a direct, immediate, and existential threat to the U.S. homeland. Regulating that decision falls under Congress’s exclusive war powers. Congress can limit its authorizations of war and prohibit military actions beyond its authorization. Therefore, Congress could stipulate that its war authorizations extend only to conventional hostilities unless Congress expressly authorizes the first use of nuclear weapons. Using its authority to limit authorizations of for the use of military force, Congress can enact a no-first-use law.

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