In a 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 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 controllable 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 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. In addition, I am not defending the Vice President’s view of Article II more broadly. 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.
UPDATE: Several readers believe I have misread Lithwick’s column: They suggest that Lithwick was not singling out the point Cheney made in the paragraph she excerpted, but rather was meaning to criticize the broader perspective of Article II that Cheney was making elsewhere in the interview. I don’t quite see that, but I am happy to flag the possibility that the misunderstanding was mine: Needless to say, if Lithwick agrees with the Cheney quote she excerpted, then it seems there is no real disagreement here.