Over the past several weeks, a new front has opened up in the legal fight over U.S. support for the Saudi-led military intervention in Yemen: the president’s authority to pursue arms sales. For months, congressional opponents of the Yemen conflict have blocked certain arms sales to Saudi Arabia and its coalition partners, citing human rights and other concerns. But on May 24, Secretary of State Mike Pompeo announced that the Trump administration was bypassing congressional review for these and other arms sales on the grounds that they were necessary to address the emergency triggered by Iran’s efforts to destabilize the region. Members of Congress pushed back hard, introducing one set of joint resolutions that would prohibit the specific arms sales in question and another proposal that, according to its authors, will eventually allow Congress to reconsider U.S. security assistance to Saudi Arabia altogether.
Like recent congressional efforts to use provisions in the War Powers Resolution to end U.S. involvement in Yemen, this disagreement over arms sales centers on the novel use of certain relatively obscure statutory provisions. And once again, opponents of the Yemen conflict in Congress appear to be at an institutional disadvantage due to the president’s veto authority. That said, as with the war powers debate, relevant legal authorities provide members of Congress with ample opportunity to force debate and make President Trump and his allies take public stances on his increasingly unpopular Yemen policies. This raises the political costs of those policies and provides a mechanism through which these members can build support for more concrete legislative action in the future, up to and including potential changes to the president’s legal authority over arms sales.
Arms Sales and the Law
The president’s authority to engage in arms sales is rooted in statute. Since at least 1795, Congress has permitted the executive branch to transfer or sell arms to allies to help advance their common defense interests. The most recent version of this authority is provided by the Arms Export Control Act (AECA) in coordination with the related Foreign Assistance Act (FAA). Unsurprisingly, however, the modern Congress does not leave U.S. arms sales entirely up to the president’s discretion. Instead, it imposes a number of conditions on what the president may sell (or permit to be sold) and how.
Enacted in 1976 following a series of arms sales-related controversies, the AECA was originally intended to promote shared executive branch and congressional control over arms sales. To accomplish this, Congress amended Section 36 of the existing Foreign Military Sales Act of 1968 to require the president to provide Congress with a “certification” of any proposed sale of defense articles or services to a foreign government—or any effort to license a private actor to conduct such a sale—above a certain threshold in value 30 days before the finalization of that sale. During the certification period, Congress could object to the sale through a concurrent resolution—meaning a resolution approved by the House and the Senate but not presented to the president for signature or veto—pursuant to certain expedited procedures defined in Section 601 of the AECA, which makes it possible for a senator to force at least a procedural vote and ensure that the measure can proceed in a timely manner so long as it has majority support. Such a resolution would, under the AECA, prohibit the president from moving forward with the sale unless he certified to Congress that “an emergency exist[ed] which require[d] such sale in the national security interests of the United States.” Functionally, this procedure gave a simple majority in Congress substantial control over U.S. arms sales.
But this arrangement was not destined to last. In its 1983 decision in the matter of INS v. Chadha, the Supreme Court held that a similar legislative veto provision in a different statute was unconstitutional, because it evaded the constitutional requirement that substantive legislation be presented to the president for a potential veto before having legal effect. This raised serious doubts as to whether the AECA’s various legislative veto provisions would withstand constitutional scrutiny if challenged in the courts. In 1986, Congress responded by amending Section 36 to substitute joint resolutions in place of concurrent resolutions for the statute’s legislative veto provisions, ensuring their constitutionality. But this substantially weakened congressional control, as the president now had the power to veto any effort to stop a proposed arms sale.
Since shortly before the AECA was enacted, Congress and the executive branch have supplemented these formal requirements with informal arrangements that are not set out in statute. As a matter of practice, the executive branch shares information regarding qualifying arms sales with relevant congressional committees prior to formal certification so that the committees may voice concerns without causing a public diplomatic incident. The Obama administration updated these procedures, creating a “tiered review” process that is still in use today. Here is how a State Department official described the process in June 2017 congressional testimony:
For nearly all [arms sales], once the Administration has made a decision to approve a [transaction] above the statutory notification threshold, we provide a draft notification to [relevant congressional c]ommittee[s] under a process we call “tiered review.”
This entails a Congressional review period during which the[y] can ask questions or raise concerns prior to the Department of State initiating formal notification. The purpose is to provide Congress the opportunity to raise concerns, and have these concerns addressed, in a confidential process with the Administration, so that our bilateral relationship with the country in question is protected during this process. If, during the Tiered Review period, the Committee raises significant concerns about a [transaction], we will typically extend the review period until we can resolve those concerns.
By voicing concerns, members of Congress involved in this tiered review process can theoretically hold up certification indefinitely. This gives them a de facto veto over proposed arms sales but only for as long as the executive branch is willing to tolerate this informal understanding and hold off on proceeding to formal certification. That said, Congress can always reevaluate how much authority it delegates to the executive branch—and it might well do so if these informal arrangements were to fall apart.
At present, the AECA generally requires that the president notify the speaker of the House of Representatives, the House Committee on Foreign Affairs and the chairman of the Senate Committee on Foreign Relations 30 days before pursuing any transaction that is, for defense articles or services, valued at $ 50 million or more; for “major defense equipment,” valued at $ 14 million or more; or, for “design and construction services,” valued at $ 200 million or more. These requirements apply regardless of whether the transaction is taking place directly through government-to-government sales (through what is called the Foreign Military Sales, or FMS, program) or a private company is being licensed to provide the defense articles or services in question (through what is called the Direct Commercial Sales, or DCS, program). The dollar threshold and period of advance notice can vary with certain conditions—for example, if the buyer is a NATO member. But much of Congress’s influence is exercised before this process even starts, through the nonstatutory pre-certification process.
Pompeo’s Emergency Proclamation and Its Aftermath
This legal background provides important context for understanding how the controversy surrounding the Trump administration’s recent decision has unfolded.
The conflict between the Trump administration and Congress arguably began when Democratic Sen. Robert Menendez, the ranking member on the Senate foreign relations committee, put a “hold” on the sale of certain precision-guided munitions to Saudi Arabia in June 2018. His letter announcing the hold, which cited the concerns of a bipartisan group of senators with U.S. policy toward Yemen, made clear that he was relying on the informal pre-certification process: It indicated that he “[could not] support moving forward with the formal congressional notification process” and requested “additional briefings” to address the policy concerns he identified. This hold remained in place for several months and may have expanded to cover other possible arms sales to Saudi Arabia and its coalition partners in Yemen. It may also have limited the Trump administration’s efforts to pursue such sales even if they were not formally subject to a hold, due to fears that they would encounter similar objections.
Regardless, on May 24, Pompeo announced that the Trump administration had elected to move forward with the precision-guided munitions sales as part of a tranche of 22 FMS and DCS sales to Jordan, Saudi Arabia and the United Arab Emirates (UAE) valued at more than $ 8 billion. He transmitted a determination and associated memorandum to Congress indicating that the arms sales were necessary to counter the “emergency” posed by Iran’s threats to regional stability, including through their support for Houthi rebels in Yemen. As Pompeo described in an associated statement:
These sales will support our allies, enhance Middle East stability, and help these nations to deter and defend themselves from the Islamic Republic of Iran.
Delaying this shipment could cause degraded systems and a lack of necessary parts and maintenance that could create severe airworthiness and interoperability concerns for our key partners, during a time of increasing regional volatility. These national security concerns have been exacerbated by many months of Congressional delay in addressing these critical requirements, and have called into doubt our reliability as a provider of defense capabilities, opening opportunities for U.S. adversaries to exploit. … Today’s action will quickly augment our partners’ capacity to provide for their own self-defense and reinforce recent changes to U.S. posture in the region to deter Iran.
Despite the language of “emergency,” Pompeo was not making the type of declaration used by the president under the National Emergencies Act to try and secure border wall funding or threaten tariffs against Mexico. Instead, Pompeo was relying on the emergency exception built into the AECA’s Section 36 requirements, which allows the president (or designees) to bypass congressional certification whenever they assert that “an emergency exists which requires the proposed [arms sale] in the national security interests of the United States.” The statute does not identify any specific conditions for what constitutes such an emergency but, instead, simply requires that the president “set forth in the certification a detailed justification for his determination[.]”
Why the Trump administration chose to use the emergency exception instead of simply disregarding Menendez’s hold and moving forward with the formal certification period is unclear. Pompeo’s statement, and recent testimony by State Department officials, contend that Pompeo’s use of the emergency exception is an extraordinary—but precedented—act that should have no bearing on the pre-certification process, which the administration wishes to keep in place:
I intend for this determination to be a one-time event. Section 36 is a long-recognized authority and has been utilized by at least four previous administrations since 1979, including Presidents Reagan and Carter. This specific measure does not alter our long-standing arms transfer review process with Congress. I look forward to continuing to work with Congress to develop prudent measures to advance and protect U.S. national security interests in the region.
While Pompeo is correct that prior administrations have used the waiver in question to similar effect a handful of times, it’s not clear whether they have done so to move forward sales that were already subject to pre-certification objections. Regardless, the Trump administration may have calculated that using the emergency exception to avoid the certification process entirely would be less damaging to the norms underlying the pre-certification process than just disregarding them entirely. Or it may simply have wished to avoid giving Congress a window in which it could adopt a joint resolution of disapproval, requiring Trump to use his veto authority once again.
If motivated by this latter logic, however, the Trump administration appears to have miscalculated badly. On June 5, a bipartisan coalition of senators introduced not one but 22 individual joint resolutions of disapproval, one for each DCS and FMS case covered by Pompeo’s emergency pronouncement. Each resolution is currently sitting in the Senate foreign relations committee, where chairman (and Trump ally) James Risch would normally be in a strong position to prevent them from coming up for a vote. The expedited procedures provided for in Section 601 of the AECA, however, allow a majority of the Senate to move a joint resolution of disapproval out of committee, on to the Senate floor, and to a final vote in a manner of days. (The AECA also directs the House to treat any such resolutions as “highly privileged,” though moving them forward is less likely to be an issue there due to Democratic control.)
Notably, there was initially a parliamentary question as to whether joint resolutions on arms sales moved forward under the emergency exception could qualify for the Section 601 expedited procedures—an ineligibility, perhaps, that the Trump administration had been relying on. The Senate parliamentarian appears to have resolved this question in favor of the resolutions’ sponsors, as Senate Majority Leader Mitch McConnell has since confirmed that a vote to move the resolutions out of committee could take place as soon as next week. Moreover, unlike concurrent resolutions in the original AECA, any joint resolutions that are enacted into law through these procedures will be free-standing legislation with independent force of law. As a result, the resolutions’ directive that each of the 22 specified transactions “is prohibited” should still be binding on the executive branch.
That said, it seems unlikely that any of the joint resolutions will reach this stage. Given that each is co-sponsored by four Republican senators, they seem to have the minimum votes necessary to pass the Senate as well as the Democrat-controlled House. But Trump is almost certain to veto them, and it seems unlikely that two-thirds of both the House and the Senate will support an effort to override these vetoes. As a result, the outcome here is likely to resemble the outcome of the Yemen war powers debate, with Trump using his veto to continue to pursue his increasingly unpopular Yemen policies over bipartisan objections. But to arrive here, the Trump administration will have to weather many more rounds of floor debate that will put bipartisan objections to the president’s Yemen policies on full display and associate his Republican allies with an increasingly unpopular war. And the numerous vetoes Trump will have to deploy will no doubt make clear to what extent he is pursuing those policies without the support of Congress.
Requesting a Section 502B(c) Report
The joint resolutions of disapproval were not Congress’s only response to Pompeo’s use of the AECA’s emergency exception. On June 9, two co-sponsors of the original resolutions—Republican Sen. Todd Young and Democratic Sen. Chris Murphy —also introduced a separate Senate-only simple resolution (S. Res. 243) requesting a report on the Saudi-led coalition’s human rights practices in Yemen under Section 502B(c) of the FAA. They maintain that, if adopted by the Senate, this resolution will ultimately allow them to force a congressional vote on whether to end U.S. security assistance to Saudi Arabia and its allies altogether.
Originally added to the FAA by the AECA in 1976, Section 502B(c) is one of an array of human rights-related provisions that restrict U.S. foreign and security assistance policies. In its current form, it authorizes either chamber of Congress—or their foreign affairs committees—to request a report on any foreign country’s human rights practices. If the requested report is not received within 30 days, then the law prohibits the delivery of any security assistance to that country absent new congressional authorization. Once the report is received, Congress may at any time introduce a joint resolution to terminate or restrict U.S. security assistance to that country. Moreover, in the Senate, resolutions requesting a report, as well as post-report joint resolutions to restrict security assistance, are subject to the expedited procedures provided for in Section 601 of the AECA, meaning a simple majority of senators should be able to move them forward.
On their face, these characteristics would seem to make Section 502B(c) a potent tool for Congress to restrict arms sales to foreign countries due to human rights concerns. But it doesn’t appear to have been used to any meaningful effect in recent years. Nor are Murphy and Young the first ones to attempt to do so in the context of the Yemen conflict. Sen. Jeff Merkley introduced an almost identical simple resolution (S. Res. 169) in April 2019, and Menendez included a similar request in related legislation (S. 398) he introduced in February 2019. Both also included similar provisions in prior related legislation they introduced in 2018. And Rep. Tom Malinowski incorporated a similar request into his own Saudi Arabia bill in the House (H.R. 2037) around the same time. None of these proposals, however, has progressed past committee, even though Merkley’s resolution would appear to qualify for the AECA’s expedited procedures.
The most likely reason is that Section 502B(c) raises constitutional concerns. As President George H.W. Bush asserted in a 1989 signing statement, Section 502B(c) is arguably inconsistent with INS v. Chadha, as it makes certain legal effects contingent on the actions of individual chambers and committees in Congress. Nor is this argument unfamiliar to the Trump administration. When Menendez and former Sen. Bob Corker, then-chairman of the Senate foreign relations committee, sought to invoke a similar provision of the Global Magnitsky Human Rights Accountability Act that allowed them to request a report on possible Saudi human rights violations relating to the murder of journalist Jamal Khashoggi, the Trump administration refused to comply on the grounds that the requirement violated the separation of powers. The Trump administration is likely to make a similar argument as to why it needs not comply with requests under Section 502B(c)—and why, if it does not, Section 502B(c)’s automatic cutoff of security assistance is ineffective. And while Trump will have no direct grounds for objecting if Congress proceeds with a joint resolution to cut off security assistance, he can once again veto it if it ultimately passes through Congress.
So why do Murphy and Young seem intent on pushing this issue now? While they may be trying to rouse the Senate into pushing the issue to test the limits of Chadha, this seems unlikely, as there are better avenues for doing this—including as part of the war powers debate in which they’ve both been deeply involved. A more likely explanation is that Murphy and Young simply wish to force another floor debate on the administration’s Yemen policy—and, if their motion passes, put Trump in the position of having to disregard another bipartisan effort to secure an assessment of Saudi Arabia’s human rights record. This would be consistent with the overall strategy that opponents of the Yemen conflict have pursued in the war powers and other contexts. And while the strategy hasn’t stopped U.S. involvement in Yemen, it’s proved effective in making U.S. policies there an increasingly costly political liability for the Trump administration and its congressional allies. That said, the broader Senate may not be persuaded that this step is necessary, particularly given the extensive debate likely to take place around the joint resolutions of disapproval. For this reason, it’s unclear whether the Murphy-Young resolution will move any further than the Merkley proposal before it.
Next Steps
Over the next few weeks, Congress is likely to adopt most, if not all, of the joint resolutions of disapproval introduced in the Senate—potentially after extended floor debates on the Trump administration’s Yemen policies. Whether the Senate proceeds with the Murphy-Young Section 502B(c) request is less clear, but if it does, then the Trump administration seems likely not to comply—and to refuse to cease security assistance to Saudi Arabia as the provision instructs—on constitutional grounds. This in turn may lead to litigation, or additional joint resolutions seeking to limit security assistance to Saudi Arabia more broadly, even if the administration does provide the requested report. Regardless, all of these roads seem likely to end in the same place: with Trump issuing a record-setting number of vetoes that, while politically damaging, will allow his preferred policies to proceed due to the absence of sufficient support in Congress for overriding those vetoes.
That said, it’s not clear the broader debate will end there. For better or worse, Pompeo’s invocation of Section 36’s emergency exception has raised new doubts in Congress about its value. “Do away with the emergency exception,” Sen. Lindsey Graham—a frequent Trump ally who is co-sponsoring the joint resolutions of disapproval—recently urged. “I would not have agreed to that before, but after this maneuver by the administration, count me in.” Other key Republicans in the House and the Senate have expressed similar sentiments, and Democratic leaders have indicated they are exploring legislation to this effect. If Congress succeeds in taking action along these lines, the Trump administration’s use of the emergency authority provided to it by the AECA, like its controversial use of other statutory authorities, may have longer lasting consequences: new, permanent constraints on the presidency, as Congress reconsiders how much authority it should delegate to the executive branch.
Lawfare – Hard National Security Choices
