Trump, Iran, Nuclear Weapons
A grim topic that Congress and the American people should be discussing
When asked in January by the New York Times “if there were any limits on his global powers,” President Trump responded: “Yeah, there is one thing. My own morality. My own mind. It’s the only thing that can stop me.”
I’m afraid those are the only constraints on Trump’s use of nuclear weapons in Iran.
Law
The 2013 Defense Department report on the U.S. nuclear strategy stated: “Consistent with decades-long practice, the President, as Commander in Chief of the U.S. Armed Forces, has the sole authority to order the employment of U.S. nuclear forces.” The 2024 report described nuclear employment guidance submitted by the Biden administration in similar terms: “the President remains the sole authority to direct U.S. nuclear employment.”
The open-ended and in this respect longtime U.S. declaratory posture states that the United States “would only consider the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its Allies and partners.” This is a public statement of intent, not a binding legal restriction.
The language in the declaratory posture is not terribly far off from the War Powers Report letter Trump sent last week to Congress on Iran: “These strikes were undertaken to protect United States forces in the region, protect the United States homeland, advance vital United States national interests, including ensuring the free flow of maritime commerce through the Strait of Hormuz and in collective self-defense of our regional allies, including Israel.”
As Bob Bauer and I explained in chapter 12 of After Trump, the president’s possession of “the sole authority” to order the use of nukes does not mean that it would be lawful to do so in every circumstance. Most international lawyers would say that most if not all uses of nukes in the current conflict would violate international law. How the Office of Legal Counsel “national interest” test should apply to determine domestic legality in this situation is, as After Trump explained, hard to fathom.
But the legal niceties of using nukes would almost certainly not deter Trump. This administration, more than any other in American history, is organized to bless the president’s policies and legal determinations.
Consider the president’s legally dubious determination that the United States is in an armed conflict with drug cartels. OLC relied on this determination without questioning it in the course of upholding the legality of the U.S. boat strikes. As the New York Times reported, “executive branch lawyers signed off on Mr. Trump’s desired course of action, including appearing to have accepted at face value the White House’s version of reality.” We should not expect that anything different would happen should Trump claim a need to use nuclear weapons.
Nor should one expect the bureaucracy to provide a check. As After Trump explained, the executive branch has “developed an elaborate nuclear command-and-control system—much of it classified—that consists of people, procedures, capabilities, communication systems, and protocols to ensure that the president can make the decision to use nuclear weapons quickly in a variety of circumstances, and also with assurance that it is the president who issues the order.”
We added: “The system places a premium on authentication and speed. It is not designed to check unreasonable, irrational, or impulsive presidential commands.”
Slowing an Unstable President
After Trump noted two potential ways that subordinates might slow “[a]n unstable president issuing an exceedingly unreasonable order to use nuclear weapons.”
The first is for the subordinate to refuse to comply with an illegal order. For reasons I explained above and at length here, I seriously doubt this will be a check now.
The second is simple insubordination without legal excuse: “There are many human beings in the loop in the chain of command between the president who gives the order to fire a nuclear weapon and the men or women who launch the weapon, and any one of them, starting with the secretary of defense or the head of Strategic Command, could simply act in an insubordinate manner, on risk of termination or court martial.”
The entire U.S. nuclear launch system is designed to avoid precisely this type of friction. But there may be a precedent of sorts. As After Trump noted:
In 1974, . . . President Nixon’s secretary of defense, James Schlesinger, reportedly ordered the chairman of the Joint Chiefs of Staff not to execute the president’s military orders without checking with him, or (in a different version) ordered military commanders to “check with either him or Secretary of State Henry Kissinger before executing” a nuclear launch order from Nixon. (The historical record on this point remains contested.)
Where We Are
In my post in January on the Venezuela action I wrote:
Our country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.
This is not the system the framers had in mind, and it is a dangerous system for all the reasons the framers worried about. But that is where we are—and indeed, it is where we have been for a while.
This is a terrible place to be when it comes to nuclear weapons and Iran: an escalating conflict initiated and guided by a volatile risk-taking, stakes-raising president in love with his power and constrained only by his “mind” and his “morality.”
After Trump discussed the difficulties Congress faces in altering the control and use mechanisms for nuclear weapons and proposed modest reforms. But statutory reform is not on the table at this time. What is needed now is more intense congressional engagement with the White House on the aims and conduct of the growing war with Iran, including extreme scenarios.
Thanks to Ema Rose Schumer for editorial assistance