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.

For major weapons sales, formal notification is often preceded by informal communications between the Executive Branch and Congress.  Relevant here, Senator Bob Menendez, the ranking Democrat on the Foreign Relations Committee, has exercised an informal hold on sales of munitions to Saudi Arabia for the past year based on concerns regarding the loss of civilian life during Saudi Arabia’s military operations in Yemen.  These concerns have bi-partisan support, which signals that a joint resolution opposing any formal notification may be possible if the White House chooses to force the issue.

The AECA statute provides the President two avenues for short-circuiting the Congressional review process.  First, AECA provides that the President need not wait for the 30-day notice period to expire when “an emergency exists which requires that consent to the proposed transfer become effective immediately in the national security interests of the United States…”  22 U.S.C. § 2753(d)(2)(A).  Second, the President has the power to veto any joint resolution blocking an FMS transaction.  Prior to 1986, AECA provided Congress the right to exercise a Congressional veto over a sale through a concurrent resolution without presentment to the President, but the statute was amended to remove this procedure after the Supreme Court ruled that a comparable procedure in the immigration context was unconstitutional.  See INS v. Chadha, 462 U.S. 919 (1983).

Given the practical challenges of overcoming a Presidential veto, the power of Congress to block an arms sale through a joint resolution under AECA has historically been limited, and according to a Congressional Research Service report issued in April 2019, Congress has never successfully blocked a proposed arms sales by use of a joint resolution.  Nevertheless, the specter of Congressional oversight does influence the FMS process in many situations, including in these recent proposed sales to Saudi Arabia.

Recent media reports have stated that the White House may rely on the “national security interests of the United States” to justify the contemplated arms sales bypass the 30-day waiting period for Congressional review, and immediately effectuate a sale of arms to Saudi Arabia.  How the White House and Congress resolve this simmering dispute may have significant implications for the FMS program as a whole, and we will continue to monitor these events as they unfold.

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Photo of Nooree Lee Nooree Lee

Nooree is a Special Counsel in Covington’s Government Contracts practice.  He represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and…

Nooree is a Special Counsel in Covington’s Government Contracts practice.  He represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and cooperative agreements.

Photo of Scott A. Freling Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement…

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.