Like no other time in recent memory, Congress is losing the war for its rightful place in American governance. President Trump’s distaste for the norms that have traditionally limited the authority of his office have battered the separation of powers, a founding principle of American political life and an essential bulwark against presidential overreach. And when it comes to the weighty decision to transfer American weapons beyond our shores, our president has shown that the balance of power between the executive and legislative branches has come to list dangerously to one side.
Indeed, the president’s unflinching and unrestrained determination to send armaments to Saudi Arabia and the United Arab Emirates — over the objections of lawmakers, civil society and the public at large — illustrates perfectly that, in the battle for the weapons of war, Congress has stumbled into its Waterloo. If nothing else, the president’s recent efforts reflect just how much of Congress’ historical oversight of U.S. arms sales has been based on norms rather than laws, and on policy rather than on statute.
In May, Trump, laying bare just how feeble Congress’ grip on the arms sales process really is, declared an “emergency” that bypassed the legally required congressional review process and expedited the transfer of weapons to Abu Dhabi and Riyadh that will likely find their way to the frontlines of Yemen’s civil war.
Though the invocation of the president’s emergency authority was a flagrant breach of traditional norms, it offers a revealing insight: We have endowed Congress with insufficient statutory authority to play a meaningful role in overseeing and scrutinizing the arms sales process.
Under the Arms Export Control Act (AECA), the principal piece of legislation governing the U.S. arms trade, Congress is enshrined as an important arbiter in the arms sales process. While the executive branch develops arms sales proposals, it is through Congress that the public gets its so sole input into the process.
Congress is where elected officials, representing the American people, can voice their concerns. Unfortunately, the structure of the law effectively ensures that, when the administration wants to push guns, bombs and other weapons systems to far-flung parts of the world, there is little lawmakers can do to stop them.
Under the law, Congress must receive a 30-day formal notification before a sale can proceed, giving them an opportunity to block the sale through a joint resolution of disapproval, requiring a majority in both bodies of Congress to take effect. As if passage of bicameral legislation was not enough of a barrier, the bill can then be vetoed by the president who, presumably, supports his or her own proposed arms sale. Congress must then muster a two-thirds majority in both houses to override the president, something that has occurred in fewer than 10 percent of all presidential vetoes and has never successfully been done with respect to arms sales.
Under previous administrations, an informal negotiation process between Congress and the White House moderated the overwhelming statutory power of the executive branch. The normative system ensured that sales were only introduced once a consensus had formed that lawmakers would approve them. Congressional concerns were addressed before the formal notification and accounted for within the administration’s deliberations. Though imperfect, the practice acted as a check on an administration’s sales authority and theoretically gave Congress the power to indefinitely prevent certification.
But because this was an informal system, predicated on executive deference to its co-equal branch of government, we should not be surprised that Trump has shown little patience for it. Instead, we are forced now to rely on the letter of the law — which all but ensures that this administration, and any subsequent one, can sell arms when and to whom it wants without respect to the wishes of Congress or the public. That has to change.
The humanitarian crisis in Yemen, where precision munitions provided by the United States have killed scores of civilians, is just the latest theater of war where American armaments are contributing to abuses of human rights and international humanitarian law, and it is unlikely to be the last.
Congress was granted a role in the arms sales process for good reason. Public scrutiny of arms sales is an indispensable insurance policy against irresponsible transactions that, for the sake of momentary expedience, risk ethical, moral and strategic compromises. For the American people, it is our sole window into an otherwise opaque world. We can’t allow it to be closed.
Lawmakers who are now working to retroactively block arms sales to Saudi Arabia and the UAE should consider adding caveats to the president’s emergency authority. The Saudi Arabia False Emergencies (SAFE) Act, recently taken up by the Senate, is a good start, and a promising opening salvo for their recuperation of authority over arms transfer decision-making.
More importantly, the bipartisan frustration with the president’s insistence on sending weapons over the heads of lawmakers should catalyze a serious conversation on how the sales process is vetted under the watchful gaze of the public eye, and just how much power should be vested in the executive branch.
Wednesday’s Senate Foreign Relations Committee hearing on the president’s emergency declaration that expedited arms shipments to the Gulf should serve as the new frontline in Congress’s tug of war with the White House. Lawmakers should not only demand answers on this specific episode, but also draw a line in the sand for their own authority in the broader arms sales process.
Ultimately, in an era of partisanship, enshrining a more direct role for lawmakers in the arms sales process is a good opportunity for bipartisan consensus. With a president who has shown norms to be insufficient a check on executive power, it is high time that lawmakers make a final stand for their role as arbiters of the exports that enable warfare and conflict across the globe.
Elias Yousif is an arms trade and security assistance researcher with the Center for International Policy’s Security Assistance Monitor. Yousif previously worked in foreign affairs research and human rights advocacy at the Atlantic Council and Crisis Action.