IN THE SENATE OF THE UNITED STATES
April 15, 2021
Mr. Markey (for himself, Mr. Merkley, Ms. Warren, Mr. Murphy, Mr. Van Hollen, Mr. Schatz, Ms. Smith, Mrs. Feinstein, and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations
To restrict the first-use strike of nuclear weapons.
This Act may be cited as the
Restricting First Use of Nuclear Weapons Act of 2021.
Findings and declaration of policy
Congress finds the following:
The Constitution gives Congress the sole power to declare war.
The framers of the Constitution understood that the monumental decision to go to war, which can result in massive death and the destruction of civilized society, must be made by the representatives of the people and not by a single person.
As stated by section 2(c) of the War Powers Resolution (Public Law 93–148; 50 U.S.C. 1541),
the constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Nuclear weapons are uniquely powerful weapons that have the capability to instantly kill millions of people, create long-term health and environmental consequences throughout the world, directly undermine global peace, and put the United States at existential risk from retaliatory nuclear strikes.
A first-use nuclear strike carried out by the United States would constitute a major act of war.
A first-use nuclear strike conducted absent a declaration of war by Congress would violate the Constitution.
The President has the sole authority to authorize the use of nuclear weapons, an order which military officers of the United States must carry out in accordance with their obligations under the Uniform Code of Military Justice.
Given its exclusive power under the Constitution to declare war, Congress must provide meaningful checks and balances to the President’s sole authority to authorize the use of a nuclear weapon.
Declaration of policy
It is the policy of the United States that no first-use nuclear strike should be conducted absent a declaration of war by Congress.
Prohibition on conduct of first-use nuclear strikes
No Federal funds may be obligated or expended to conduct a first-use nuclear strike unless such strike is conducted pursuant to a war declared by Congress that expressly authorizes such strike.
First-Use nuclear strike defined
In this section, the term first-use nuclear strike means an attack using nuclear weapons against an enemy that is conducted without the Secretary of Defense and the Chairman of the Joint Chiefs of Staff first confirming to the President that there has been a nuclear strike against the United States, its territories, or its allies (as specified in section 3(b)(2) of the Arms Export Control Act (22 U.S.C. 2753(b)(2))).