Trump likely to prevail over Congress on Saudi and UAE arms sales

Although Congress has the “power of the purse” (meaning the appropriations process), the courts have generally been deferential to presidents on the conduct of foreign affairs.
Sunday 02/06/2019
US President Donald Trump looks at supporters before boarding Air Force, in Montoursville, Pennsylvania, May 20. (Reuters)
US President Donald Trump looks at supporters before boarding Air Force, in Montoursville, Pennsylvania, May 20. (Reuters)

US President Donald Trump invoked a seldom-used clause in the Arms Export Control Act to bypass the normal 30-day congressional notification process by declaring the situation involving Iran is an “emergency” that necessitates proposed arms sales to Saudi Arabia and the United Arab Emirates to move forward.

US Secretary of State Mike Pompeo told the US Congress in a written statement on May 24 that such an “emergency exists” because of Iran’s “malign” influence “throughout the Middle East region.”

The arms package to Saudi Arabia and the United Arab Emirates involves more than 20 proposed sales worth a total of about $8 billion. The last time a US president invoked an emergency to allow for an arms sale to go forward in an expedited fashion was in 2006 when the George W. Bush administration sent precision-guided weapons to Israel during its military conflict with Hezbollah.

However, because the current sales involve Saudi Arabia, which has been the object of special scrutiny by Congress over human rights issues and the Yemen war, several members of Congress raised loud objections. It was only a few weeks ago that Trump vetoed a congressional bill invoking the war powers resolution that aimed to end US military support for the Saudi-led coalition in Yemen.

It seems certain that, had this new arms sale gone through the normal congressional review process, it would have been blocked. Last year, US Senator Robert Menendez, a New Jersey Democrat and ranking member of the Senate Foreign Relations Committee, put a hold on $2 billion worth of precision-guided munitions to Saudi Arabia and the United Arab Emirates over their conduct in the Yemen war.

This particular arms sale is part of the $8 billion package that the Trump administration is planning to move forward by invoking an emergency.

Some members of Congress, such as Menendez, objected to the Trump decision by claiming it runs roughshod over congressional prerogatives. Even prominent Republicans are voicing concern. US Representative Michael McCaul, a Texas Republican, the ranking member of the House Foreign Affairs Committee, issued a statement calling the administration’s decision “unfortunate,” adding that it would “damage certain future congressional interactions.”

Other Republicans suggested that the invoking of the emergency clause by the Trump administration sets a dangerous precedent because it might be used by a Democratic president at some point against the will of a Republican-led Congress.

Pompeo, once a member of Congress, seems cognisant of that sentiment. He emphasised that bypassing of the normal congressional review process in this case was “a one-time event” and would “not alter our long-standing arms transfer review process with Congress.”

Still, relations between the Trump administration with some members of Congress, particularly Democrats, are so frayed that the latter are loth to take the administration’s word for any development. Senator Chris Murphy, a Connecticut Democrat and a prominent critic of US policy in support of the Saudi-led coalition in Yemen, charged that there “is no new ‘emergency’ reason to sell bombs to the Saudis to drop in Yemen.”

Representative Eliot Engel, a Democrat from New York and chairman of the House Foreign Affairs Committee, noted that “Congress wrote the law so that weapons sales would reflect broad consensus on foreign policy consistent with our values, and the notion that there’s an emergency that justified upending our checks and balances is false, plain and simple.”

Time magazine reported that Menendez and Murphy said they would challenge Trump’s decision but it is unclear how they will do so.

They may have taken heart that a federal judge in California recently blocked Trump’s plans to use Pentagon funds to build part of his border wall and perhaps believe that another federal judge will issue an injunction on the foreign arms sale.

However, working in Trump’s favour is that the US Constitution gives the president broad foreign policy powers. Although Congress has the “power of the purse” (meaning the appropriations process), the courts have generally been deferential to presidents on the conduct of foreign affairs.

Because the Arms Export Control Act does contain an “emergency” clause that has been invoked (albeit sparingly) previously, congressional lawyers would have to make a compelling case that the present situation was not an emergency and find a judge who would want to weigh in on a foreign policy matter that does not involve appropriations.

While the first would not be too difficult to do, the second would be a challenge. Hence, Trump is likely to prevail in this fight but at the cost of damaging relations with Congress, even among some of his fellow Republicans.

19