THE PRESIDENT’S AUTHORITY TO RESPOND TO A NUCLEAR ATTACK: Orin Kerr corrects Dahlia Lithwick, but I’m reminded of an example I heard from Charles L. Black.

Article I Section 10 of the Constitution provides:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

If states — who are expressly barred by the Constitution from engaging in war — may still do so when actually invaded or even “in such imminent Danger as will not admit of delay” (which would appear to allow even preemptive attacks under some circumstances) then surely the President, who is commander-in-chief and labors under no such express prohibition, may do at least as much. Certainly anyone arguing otherwise has a very heavy burden to overcome.