Striking Russia if Russia Nukes Ukraine: Presidential War Power Beyond Its Outer Edge (original) (raw)

2024, Ohio State Law Journal

Russia’s full-scale invasion of Ukraine of 2022 prompted the greatest risk of nuclear use since the Cold War’s most dangerous crises. After receiving indications in late 2022 that Russia was contemplating use of one or more nuclear weapons to halt Ukraine’s counter-offensive, senior officials in the United States and other NATO states warned Moscow of “catastrophic consequences” that would follow a Russian nuclear attack on Ukraine. These warnings included relatively clear threats of a punishing conventional response by the United States against Russian targets. That prospect was subject to analysis in security policy and military terms. Neglected at least outside government has been an urgent legal question: whether it would be legal under U.S. law for the President to order a U.S. military response against Russia for a nuclear attack on Ukraine, such as sinking what remains of the Black Sea Fleet. This piece takes on that enormously important legal question, with the hope of prompting an alarmingly absent public conversation. This article contends, first, that this legal question deserves engagement now, because in this unstable conflict the possibility of a Russian nuclear attack on Ukraine could revive at any point. Second, despite sympathies on the author’s part for Ukraine that could not be stronger, this article next maintains that a military response against Russia, absent congressional authorization, and absent indication of a second follow-on attack against the United States, U.S. forces, or U.S. treaty allies, would push presidential war authority beyond its outer edge. Under the Constitution’s vision of shared power and war powers doctrine, and lacking a strong argument that any of the four classic legal bases for using force are here operative, the President cannot on their own initiate a discretionary full “war” in the constitutional sense. The discretionary nature of the U.S. attack plus the colossal risk of escalation to a world-ending nuclear exchange would make congressional authorization constitutionally imperative. Third, this article sets out an array of alternatives to use of kinetic force that are legal and available to the President at any time. The prospect of cyber attacks, covert actions, and other steps ought to induce uncertainty in the Kremlin and if exercised could impose a severe price. These alternatives to a U.S. kinetic strike therefore have real deterrent power. Accordingly, this piece concludes with a note of caution to any readers in Russia. The President has many options, and the Executive Branch’s lawyers may take a more permissive view of the law on use of force than this article articulates. It is quite likely that Russia would suffer a terrible cost and achieve very little for breaking the 75 year-old taboo and committing an atomic atrocity against brave, righteous Ukraine.