On May 23, 2019, multiple news outlets reported that the White House was considering an emergency declaration to permit arms shipments to Saudi Arabia without Congressional approval. These reports were met with sharp criticism by multiple legislators. These recent developments shine a spotlight on the contours of the Congressional notice and approval mechanisms set forth in the Arms Export Control Act (AECA).
AECA (22 U.S.C. § 2751 et seq.) is the authorizing statute for the Foreign Military Sales (FMS) program. AECA and the implementing guidance from the Defense Security Cooperation Agency (DSCA) set forth the procedures for the development of a transaction under the FMS program, referred to as an FMS case.
Once an FMS case has been negotiated between the U.S. Government and the foreign government purchaser, the White House is required submit a formal notification to the Speaker of the House of Representatives, the House Committee on Foreign Affairs, and the Senate Committee on Foreign Relations (although this requirement is subject to country- and defense article-specific dollar value thresholds). Congress then has 30 days (or 15 days for certain proposed sales to a NATO county, Australia, Japan, South Korea, Israel, or New Zealand) to enact a joint resolution opposing the sale. Unless a joint resolution is passed within the time period, Congress is considered to have consented to the sale.