The Constitution Has a Flaw
By Nayyer Ali MD

The US Constitution has a flaw in it when it comes to military force. It assigns the powers of Commander-in-Chief to the President, but it gives Congress the power and responsibility to declare war. This tension was not an issue for the first 175 years of American history. In war after war, the US Congress issued a formal declaration of war while the President commanded the military operations, with the help of the generals.
In 1950 though, President Truman took the US to war in Korea without a formal declaration of war from Congress. Truman ordered US forces into Korea within days of the North Korean invasion, and Congress did not object. The legal basis for US military action became the UN Resolution that asked for member states to help South Korea oppose aggression. After Korea, the US has never formally declared war.
What has happened though is for Congress to vote on “authorization for the use of military force” or AUMF. It did that in both the first and second Gulf war, and in Vietnam it voted for the President to have authority “to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom". The Vietnam case was known as the “Gulf of Tonkin Resolution” passed in 1964 and was the legal basis for the war, even though that was not what the Congress was voting for at the time.
But because the US President is Commander-in-Chief, he can order the military to strike without Congressional pre-approval. This has happened many times over the last few decades. This is only currently limited by a 1973 law called the War Powers Act, which requires the President to seek Congressional approval for any military action lasting longer than 90 days.
In reality, this leaves the US President with awesome military power that is completely unchecked. The US nuclear arsenal is entirely and solely under the control of the President. If he decides, he can start a nuclear war at any time with any country. Wherever the President goes he is shadowed by an officer carrying the nuclear “football”, the device that has the launch codes for the American nuclear arsenal. The system is built with numerous checks within it such that no unauthorized use of nuclear weapons can occur. Even the captains on board the 18 nuclear missile carrying submarines cannot launch without the authorization codes from the President.
During the Cold War there was the fear that a massive Soviet nuclear strike against the US could occur at any time. Such a strike could catch American nuclear missiles in their silos and nuclear bombers idle on their bases, thereby disarming much of the American ability to strike back. This created a perceived need to give the President the authority to order a launch without having to consult with anyone, including Congress. Soviet missiles would need less than 25 minutes to fly to their targets, making consultation with Congress an impossibility. As such, the President was given the power to start a nuclear war on his own.
This was not a situation anyone was happy about, but it was accepted knowing that our Presidents were rational men not prone to impulsive acts. As the Cold War is long over, there is no threat of catastrophic destruction of the US by a massive Soviet strike and the nation’s nuclear arsenal should no longer be under the control of any one person. A use of nuclear weapons by the US should now require the President, the Secretary of Defense, the Senate Majority Leader, and the Speaker of the House to all agree that a strike should take place immediately in order for the military to use a nuclear weapon. Without all four agreeing, the matter should be turned over to Congress for a full Congressional vote and approval.


Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.