Obama Seizing Sole Authority for US Defense
President Obama needs congressional approval if he wishes to further diminish America’s arsenal.
By JOHN BOLTON AND JOHN YOO
Poised to join his former Senate Foreign Relations Committee colleagues Barack Obama and Joe Biden (and possibly Chuck Hagel) in the executive branch, Sen. John Kerry will likely join this administration’s push for “dramatic reductions” in America’s nuclear arsenal. Yet as a long-time senator and possibly our next secretary of state, he should know better. Such cuts threaten both the viability of our strategic deterrent and the Senate’s constitutional say over treaties, a critical check on executive power in foreign affairs.
President Obama has made eliminating all nuclear weapons his signature policy. In 2011, his New Start Treaty committed the United States to a ceiling of 700 strategic delivery vehicles and 1,550 strategic warheads. Now, as he promised in March, he seeks even deeper reductions through “a step we have never taken before—reducing not only our strategic nuclear warheads, but also tactical weapons and warheads in reserve.”
But the president faces the Constitution’s requirement that two-thirds of the Senate consent to any treaty. In 2010, the Senate ratified New Start with a vote of 71-26, but only after ending a filibuster with the exact 67 votes needed for a treaty. After his nasty re-election campaign, partisan budget wrangling and unfulfilled promises to modernize our nuclear stockpile, Mr. Obama will have a hard time finding 12 Republican senators to support any new nuclear deal with Russia.
Accordingly, a State Department advisory group headed by former Defense Secretary William Perry suggests that Mr. Obama ignore Congress. Its November report urges that America and Russia reciprocally reduce nuclear weapons without any international agreement: “Unilateral and coordinated reductions can be quicker and less politically costly . . . relative to treaties with adversarial negotiations and difficult ratification processes.”
Senators should block end-runs around the Constitution’s treaty clause. An informal agreement would prevent effective congressional scrutiny of the unwise rush to slash the nuclear arsenal, America’s ultimate national-security safeguard and a crucial buttress of world peace. Common limits on nuclear warheads ignore the enormous disparities between America’s global responsibilities and Russia’s far more limited interests. Constraints on launching platforms impede the U.S.’s ability to use conventional warheads in conflicts far from any Russian concern. Only an effective American nuclear deterrent can prevent regional arms races sparked by the Iranian and North Korean campaigns to perfect nuclear weapons and ballistic missiles.
A fly-by-night agreement would only compound these defects. Russia has violated many of its arms-control treaty commitments, and no patina of international law would bind Russia under the Obama administration’s wink-and-a-nod. We have experience with these types of loose political agreements, such as the 1991 Presidential Nuclear Initiatives, with which Moscow has never complied adequately. America’s diminishing nuclear capabilities risk allowing Russia to break out quickly to significantly higher weapons levels that leave the U.S. strategically vulnerable.
The Constitution’s treaty mechanism requires real political consensus to sustain decisions on high matters of state. The Framers mandated Senate supermajorities for treaties precisely to guard against the foolhardy surrender of national rights. Long-term limits on arms, by requiring far-reaching constraints on building and deploying weapons systems, strike at the very core of national sovereignty: the ability to defend ourselves. Evading the treaty clause on vital strategic issues unwisely violates the Framers’ design.
Pursuing arms reductions without senatorial consent would contravene the Constitution’s careful calibration of executive and legislative power. The commander in chief has the power to decide how, when, and where to use the military—but only the one Congress provides. Understanding funding as the most important check on the executive’s war powers, the Framers granted Congress plenary authority over the shape and size of the U.S. armed forces.
In Virginia’s ratification convention, for example, James Madison stated, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” Under Article I, Section 8, a Congress that disagrees with White House arms cuts can respond by raising a larger military. In the 1990s, Congress funded national missile defense despite Clinton administration opposition.
The U.S. has never entered into a significant arms-control agreement without a treaty—not the Comprehensive Nuclear-Test-Ban Treaty (1963), the Nuclear Non-Proliferation Treaty (1970), the Anti-Ballistic Missile Treaty (1972), the Biological Weapons Convention (1975), the Intermediate-Range Nuclear Forces Treaty (1987), the Conventional Forces in Europe Treaty, the Chemical Weapons Convention (1993), Start I (1991) or New Start (2010).
Only SALT I—an interim, ultimately flawed agreement with the Soviet Union entered into under the Nixon administration—didn’t take treaty form. Presidents Carter and Reagan erred in keeping the U.S. within SALT II’s nuclear limits without Senate ratification. President George W. Bush, by contrast, correctly received Senate consent to the 2002 Treaty of Moscow, which reduced deployed nuclear weapons after the U.S. withdrew from the Anti-Ballistic Missile Treaty.
There may be no perfect constitutional test for when treaties are required, but surely the touchstone must be the gravity of the issue for sovereignty and security. The closer an international agreement approaches the core of self-defense and independence, the stronger is the case for the Senate’s constitutional role. For arms agreements between the U.S. and Russia, the world’s largest nuclear powers, the Constitution’s answer could not be clearer.
Mr. Bolton, a senior fellow at the American Enterprise Institute, was undersecretary of state for arms control and international security from 2001-05. Mr. Yoo, a professor at the University of California at Berkeley School of Law, served in the Justice Department from 2001-03.
A version of this article appeared December 28, 2012, on page A15 in the U.S. edition of The Wall Street Journal, with the headline: The Senate Should Block an End Run on Nuclear Arms