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OCongressional
ArResearch Service
i nforming th wegislative debate since 1914
MEMORANDUM November 3, 2017
Subject: Legislation Limiting the President's Power to Use Nuclear Weapons: Separation of
Powers Implications
From: Stephen P. Mulligan, Legislative Attorney, smulligan@crs.loc.gov, 7-8983
This memorandum was prepared to enable distribution to more than one congressional office.
Recent proposed legislation that would place limitations on the President's power to employ nuclear
weapons has prompted interest in questions related to the constitutional allocation of power over the
United States' nuclear arsenal. This memorandum examines the constitutional separation of powers
principles implicated by legislative proposals that restrict the President's authority to launch nuclear
weapons. 1
I. Recent Legislation and Proposals to Restrict First-Use of Nuclear
Weapons
Legislation proposed in the 115th Congress would limit the President's ability to order a first-use nuclear
strike.,2 On January 24, 2017, identical versions of a bill titled the Restricting First-Use of Nuclear
Weapons Act of 2017 (Restricting First-Use Bill) were introduced in both chambers of Congress. The
Restricting First-Use Bill would prohibit the President from using the Armed Forces of the United States
to conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by
Congress that expressly authorizes such strike.3 The term first-use nuclear strike is defined as an
attack using nuclear weapons against an enemy that is conducted without the President determining that
the enemy has first launched a nuclear strike against the United States or an ally of the United States.4
While some have advocated that the United States adopt a broader no-first-use policy and pledge never
to use nuclear weapons first against a nuclear-armed adversary,5 the Restricting First-Use Bill would
1 This memorandum addresses constitutional separation of powers principles as they relate to proposed legislation that would
modify the current system of nuclear weapons control by requiring congressional approval before the President could launch a
nuclear strike in certain circumstances. For a discussion of the current system of command and control over nuclear weaponry,
see CRS In Focus IF10521, Defense Primer: Command and Control of Nuclear Forces, by Amy F. Woolf.
2 See H.R. 669, 115th Cong., § 3 (as introduced), S. 200, 115th Cong., § 3 (as introduced) [hereinafter collectively the
Restricting First-Use Bill]. The memorandum addresses the Restricting First-Use Bill as introduced in the 115th Congress.
Identical bills were also introduced in the 114th Congress on September 27, 2016. See S. 3400, 114th Cong.; H.R. 6179, 114th
Cong.
3 Restricting First-Use Bill § 3(a).
4 Id. § 3(b).
5 See, e.g., Letter from Honorable Barbara Lee, et al. to President Barack Obama (Oct. 13, 2016),
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