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Congressional Disapproval of AWACS Arms Sale

Date of Issuance:

The provision in § 36(b) of the Arms Export Control Act for congressional disapproval by concurrent resolution of a proposed sale of military equipment is unconstitutional under the Presentation Clauses of the Constitution; since a resolution of disapproval under § 36(b) has the force and effect of law, the President must be given the opportunity to approve or veto such congressional action.

The legislative veto in § 36(b) impermissibly intrudes on the President’s authority to execute the laws and to conduct the Nation’s foreign relations, in violation of the principle of separation of powers.

The legislative veto in § 36(b) is severable from the other provisions of the Arms Export Control Act, since nothing in the legislative history of that Act indicates an intent to deprive the President altogether of his power to transact foreign military sales.

The “report-and-wait” provision in § 36(b), which requires that the President report arms sales to the Congress and delay the transaction for a 30-day period pending congressional action to disapprove the sale through the enactment of legislation, is not unconstitutional.

The President could, consistent with the longstanding position of the Executive Branch and with the express statements of his two immediate predecessors, choose to treat a congressional resolution of disapproval under § 36(b) as a legal nullity. Alternatively, the President could avoid the necessity to submit a proposed arms sale for congressional review by invoking the emergency provision of § 36(b), or by making a finding that the sale is vital to the national security interests of the United States under the International Security and Development Cooperation Act of 1980.

Updated July 9, 2014