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A Farewell to Arms Deals

What can Democrats do to claw back some of the powers that Congress has ceded to the president?

Mark Wilson/Getty Images

If there’s one thing at which the Trump administration excels, it’s finding arcane provisions in federal law to implement its policy vision. Secretary of State Mike Pompeo announced last month that the U.S. would use emergency powers to bypass Congress on 22 arms deals with the Saudi government and other neighboring Arab states. “We presented some of these sales almost 18 months ago to Congress, but it has failed to act,” he wrote on Twitter. “The U.S. is, and must remain, a reliable security partner in the Gulf and to our allies around the world. It’s fundamental to our national security.”

A bipartisan group of senators, led by Connecticut Democrat Chris Murphy and Indiana Republican Todd Young, said on Sunday that they would introduce congressional resolutions to block a slate of U.S. arms sales to Saudi Arabia. The move reflects a growing unease on Capitol Hill with the Trump administration’s close relationship with Riyadh, as well as concerns about U.S. involvement in the kingdom’s destructive war in Yemen. Like so many other disputes in the Trump era, the clash also underscores the imbalance of power in Washington—one that long predates the sitting president.

A reckoning with the Trump era also requires a reckoning with the amount of power that Congress has ceded to the executive branch over the past half-century. It’s the thread that connects most every major showdown Trump instigates, from the Muslim-targeted travel ban one week after he took office through his tariff threats with Mexico last week. Democratic presidential candidates, as they compete for policy supremacy, ought to craft solutions to this aggressive growth of executive power. On the matter of foreign arms sales, one of them already has.

Pompeo cited the Arms Export Control Act to justify the administration’s move, which includes a provision that allows the president to bypass congressional review if his administration determines that “an emergency exists which requires the proposed sale in the national security interest of the United States.” What’s striking is how perfunctory the restrictions are in the first place: If Congress wants to block a particular arms sale, lawmakers would need to pass a resolution of disapproval by a two-thirds majority in both chambers to overcome the president’s likely veto.

Traditional Washington comity largely obscured this weakness, since the White House would typically limit or scrap an arms deal if faced with enough congressional criticism. In the hands of a president with an iron grip on one party and nothing but contempt for the other, it’s more of a blank check than a meaningful one. The raft of moribund Cold War–era laws that give the president emergency powers in certain circumstances, coupled with Trump’s extraordinarily broad definition of when they can be invoked, and the Supreme Court’s supine deference to those interpretations, has been a disastrous recipe for American governance.

Part of the problem stems from INS v. Chadha, a Supreme Court decision handed down decades ago. It’s an unusual case. After Jagdish Rai Chadha’s student visa expired in 1972, U.S. immigration officials let the Kenyan-born South Asian man stay in the country because of dangerous racial tensions in Kenya. In 1975, however, the House of Representatives overrode that determination, effectively ordering Chadha and five other foreign nationals to be deported. He filed a lawsuit to challenge a provision of U.S. immigration law that granted each chamber of Congress that power.

In a landmark 7–2 ruling in 1983, the Supreme Court sided with Chadha and effectively struck down the legislative veto. Chief Justice Warren Burger, writing for the majority, said that the provision in question was “essentially legislative in purpose and effect.” As a result, it violated the Constitution’s bicameralism requirement by allowing one chamber of Congress to undertake a legislative act on its own. More importantly, the court ruled that such vetoes violate the Constitution’s requirement that all legislation be presented to the president for his signature or veto.

Justice Byron White took the rare step of reading his dissent from the bench, signaling his deep disapproval of the court’s decision. “Today’s decision strikes down in one fell swoop provisions in more laws enacted by Congress than the court has cumulatively invalidated in its history,” he wrote. He argued that his colleagues had insisted on a separation of powers far stricter than what the Framers had envisioned, one ill-suited for the modern era of the administrative state. “To be sure, the President may have preferred unrestricted power,” White wrote, “but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority.”

What would happen next? White wrote that without the legislative veto, lawmakers faced a “Hobson’s choice.” Congress could write narrow laws that delegated little authority, “leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape.” Or it could “abdicate its lawmaking function to the Executive Branch and independent agencies” by writing broad laws for civil servants to flesh out later. “To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role,” White wrote.

Lawmakers quickly realized how the court’s decision would reshape their relations with the White House. Among them was Delaware Senator Joe Biden, then a junior member of the Senate Foreign Relations Committee and now a presidential candidate. He pointed to two areas where the justices had upended years of compromise between the two branches: U.S. military involvement under the War Powers Resolution, and arms sales to foreign governments. “The Supreme Court’s decision has shattered a careful and workable accommodation between Congress and the Executive, a development that, in my opinion, threatens our ability to fashion a foreign policy that is consistent, coherent, and safe,” he wrote in a 1984 Syracuse Law Review article.

For arms sales, Biden’s solution was to invert the legal mechanism in question. Rather than giving Congress an opportunity to stop each sale before it took effect, his bill would have required the White House to seek affirmative support from lawmakers first. “Under a joint resolution of approval, of course, a sale cannot go through until it is approved by both houses and signed by the President,” he wrote. “That can take up a lot of Senate and House time, but it is the only way for Congress to retain the same degree of control we had over arms sales before Chadha.”

This maneuver would remove the mathematical disadvantage faced by lawmakers: the president’s veto power. “Under a joint resolution of disapproval, Congress can get its way only if it has enough votes to override a presidential veto,” Biden explained. “So instead of needing fifty-one senators’ votes to defeat an arms sale we would need sixty-seven, plus two-thirds of the House of Representatives.” In other words, so long as the president can muster the support of one-third of one chamber of Congress, lawmakers are generally powerless to halt controversial arms sales to foreign powers.

Democratic lawmakers could theoretically introduce a bill like the one proposed by Biden more than 30 years ago. But like the resolutions of disapproval themselves, any measure that would constrain the president’s power over arms sales will almost certainly be vetoed by Trump himself. Only a new president can reverse this tide. Every Democratic presidential candidate will face questions over whether they should use the executive powers carved out by Trump and his predecessors, or repudiate them. Many candidates seem inclined to do the former. But when it comes to selling high-tech weaponry to dubious foreign governments, without meaningful legislative checks, the answer to that question should be easy.