Trump’s move is legal. Under the 1976 Arms Export Control Act, the State Department authorizes arms sales (or doesn’t). As I explain below, Congress usually allows decisions to be implemented without objection. But this time, the administration has invoked the act’s provision that allows presidents to sidestep congressional review if they believe a national security emergency requires the arms to be sold. In doing so, it is ignoring the bipartisan resolution Congress passed in April to halt U.S. military support for the Saudi war in Yemen.
While no one is surprised that Democratic senators are voicing outrage, what is unusual is that Republicans are forcefully objecting, too. Sen. Marco Rubio (R-Fla.) called circumventing Congress a “big mistake,” and Sen. Lindsey O. Graham (R-S.C.) said, “I don’t support arms sales,” and criticized Trump for “doing business as usual” with Saudi Arabia.
Why is the administration working so hard to avoid Congress? Here’s what you need to know about the administration’s controversial move to authorize the new arms sales.
1. It’s not easy for Congress to block arms sales.
The State Department’s Bureau of Political-Military Affairs oversees most of the arms-sale process, evaluating whether a given sale to a particular government is in the U.S. interest. The State Department has wide latitude to negotiate the types of weapons and the terms of sale.
The 1976 Arms Export Control Act requires the president to notify Congress of any arms sale greater than $14 million, and it empowers Congress to block or modify an arms sale at any point before delivery by adopting a “resolution of disapproval.”
Because the law prevents senators from filibustering the disapproval resolution, the Senate can adopt it by a simple majority vote. But the law also allows the president to veto the resolution. To block an arms sale, congressional opponents need a two-thirds majority in both chambers to override a president’s veto.
Members of Congress have tried in the past to pass objections to proposed arms sales. That succeeded only once, in 1986, when a Republican Senate and a Democratic House voted to block the proposed sale of Sidewinder, Harpoon and Stinger missiles to Saudi Arabia. Although President Ronald Reagan vetoed the resolution, congressional opposition led the administration to alter the deal. Saudi Arabia ultimately received only Sidewinder and Harpoon missiles. Other congressional attempts to block arms sales proposed by the president have failed.
Congress also has informal tools to influence administration decisions. In April 2018, Sen. Robert Menendez (D-N.J.) slowed down this particular sale to Saudi Arabia by refusing to consent to the congressional notification process until the Trump administration provided more information about the deal. Menendez feared the arms would be used in Yemen. His continued refusal to consent is what has led Trump to invoke the emergency provision.
Members of Congress are best able to block arms transfers when they and the executive branch agree about U.S. foreign policy. In 2013, for example, President Barack Obama and the State Department decided to review military sales to Egypt after its elected government was overthrown. Sen. Patrick J. Leahy (D-Vt.), expressing the views of Congress, agreed that military aid needed to end. With the support of Congress, the Obama administration suspended arms sales to Egypt in October 2013.
2. There’s a loophole for emergencies.
This time, House and Senate majorities clearly oppose additional arms sales to Saudi Arabia. But the president can bypass congressional approval if he concludes “an emergency exists which requires the proposed sale in the national security interest of the United States.” According to the law, such a declaration requires the president to detail his justification, describing the emergency circumstances and explaining the national security interests involved. While the administration has not submitted this document, Secretary of State Mike Pompeo says the emergency declaration will be based on a “heightened threat against American interests in the region from Iran.”
Presidents do not often invoke the 1976 act’s emergency provision, but they do often override Congress’s concerns about U.S. arms sales. Previous presidents have vetoed congressional resolutions of disapproval or otherwise ignored congressional advice. Since 1986, presidents have approved at least $145 billion worth of weapons sales without congressional approval.
3. This isn’t the first battle over U.S. arms sales to Saudi Arabia.
When Congress and the president disagree about arms sales, it’s almost always about selling to Saudi Arabia. That’s been true for decades, as lawmakers have raised concerns about human rights and the regional balance of power. U.S. arms sales to Saudi Arabia worry Israel and arouse American anti-Arab sentiments. For instance, in 1981, the House voted not to approve the sale of Airborne Warning and Control System planes (AWACS) to Saudi Arabia, but the Senate failed to pass the resolution, and Saudi Arabia received the first AWACS in 1986. In October 1990, Sen. Alan Cranston (D-Calif.) introduced a resolution to block $7.3 billion worth of tanks, helicopters and missiles, but the resolution never made it to the floor.
In April, Congress invoked the 1973 War Powers Resolution for the first time, with the goal of stopping the administration from supporting the Saudi war in Yemen. Behind the congressional resolution lay the worsening humanitarian crisis in Yemen and the CIA’s conclusion that Saudi Arabia’s crown prince ordered the assassination of Washington Post contributing columnist Jamal Khashoggi. Trump vetoed the resolution on April 17.
Assuming Trump follows through and uses the emergency provision in the 1976 act, he will authorize the sale of precision-guided munitions and fighter jets to Saudi Arabia over congressional objections, driving a bigger wedge between himself and congressional Republicans on U.S. policy toward Saudi Arabia.
But unless Congress can include a clause blocking the arms sale in a must-pass spending bill — or use informal influence — the arms sale is likely to go forward, in line with existing U.S. law and practices.
Jennifer Spindel is an assistant professor of international security at the University of Oklahoma and the associate director of the Cyber Governance and Policy Center. Follow her on Twitter @jsspindel