by Prof. Gordon L. Bowen, Ph.D.
A. Background: US v Curtiss-Wright (1936): The President alone can control arms exports in the national interest.1. In 1934, Congress passed joint resolution that authorized an arms export embargo to Paraguay and Bolivia if the President certified that this "may contribute to the reestablishment of peace between those countries" (in Cushman: 135). FDR later declared the embargo, and Curtiss-Wright corporation was convicted of selling guns to Bolivia in its violation.B. In 1960s -1970s Arms Sales had become a major tool of the presidency in shaping foreign policy
2. US Supreme Court upheld the conviction, saying that "In this vast external realm,... the President alone has the power to speak or listen as a representative of the nation... It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations... exercised in subordination to the applicable provision of the Constitution" (in Cushman: 138).1. in 1958, $1.96 Billion were granted and .23 were sold.C. Congressional Reaction. By 1974, owing to dissatisfaction over Vietnam, secret wars in Cambodia, and questionable uses of the Military Assistance program (MAP) and and the Foreign Military Sales Program (FMS) to buttress a military governments in Chile and elsewhere, Congress was ready to try to insert its priorities into these decisions. Noted Presidential scholar Thomas Cronin has summed up these efforts saying "Congress has ... demanded, and won, a greater role in arms sales abroad..." (160); "real congressional resurgence did take place in the immediate post-Watergate years" (164).
2. in 1968, $0.46 Billion were granted and $1.5B were sold.
3. sales to Iran alone, 1968-79, exceeded $20.B.1. In 1974, the so called Nelson-Bingham Amendments to FY75 foreign aid authorization (PL 93-559) were enacted, which stated that President formally must inform Congress in writing in advance of all arms sales of value greater than $25 Million, or of any "major defense system" sales in excess of $7M.D. Defining our Terms:
2. Arms Export Control Act of 1976 codified these objectives and made the thresholds for informing Congress $50M and $14M.
3. Under each Act, Congress then assigned itself an opportunity to stop the sale: Nelson/Bingham, 20 days; AECA, 30 days. Under each, both Houses had to disapprove the sale by Concurrent Resolution or the sale went forward. This is one form of what was known as a Legislative veto, i.e. where Congress attempted to stop executive departments' actions by action of one or two houses, but not the President. In 1983, the Supreme Court ruled in I.N.S. v Chadha that legislative vetoes violated the principle of separation of powers in the U.S. Constitution by excessively limiting the veto power of the President.
4. In 1986, Amendments to the AECA were enacted assigning to the Congress an opportunity to stop sales by Joint Resolution within the time limits set by the 1976 AECA. Such a Joint Resolution is subject to veto by the President, and to over-ride by Congress on a 2/3 vote.1. Concurrent Resolution: A special measure passed by one house of Congress with the other house concurring, but not requiring the signature of the president. E.g., the provision in the War Powers Act (1973) requiring the President to desist from war-like actions upon passage.E. Cases under the Arms Export Control Act and related laws. While Congress as a whole on a formal floor vote "never exercised a legislative veto over arms sales,... the threat of disapproval forced the president a number of times to make compromises that restricted the use of weapons" (Fisher: 174), including Presidential withdrawal of proposed sales to Turkey, Chile, Argentina, Libya, and Iraq (Spanier and Uslaner: 161) which at various times were killed or stalled to the point of dying in Congressional Committees. Some of the more notable cases included:
2. Joint Resolution: A measure similar to a bill that must be approved in both chambers of Congress and by the President. E.g., the Tonkin Gulf Resolution (1964).1. 1975: Proposed sale of Hawk missiles to Jordan: Pres. Ford withdrew his request after one House disapproved. The case provides an early glimpse of the new foreign policy process. While in the past foreign leaders would focus on the President and other executive branch officials when making aid requests, in this case Jordanian King Hussein wrote directly to all 100 senators and to 50 key members of the House to lobby for the missile deal. He was unsuccessful.sources:
2. Military aid of all types to Turkey (over Cyprus) and Chile (over human rights) stopped in 1975-6.
3. 1976: Threat of use of this Act causes Ford to reduce from 1500 to 650 the number of air-to-ground missiles he proposed to sell to Saudi Arabia.
4. 1979: Pres. Carter overcame Congressional opposition to the sale of F-15s and bomb racks to Saudi Arabia.
5. 1981: AWACS Case. An attempt to stop the sale of a $8.5 billion package of weapons, including five AWACS planes, and other equipment (e.g., nearly 1200 air-to-air missiles; $2.4 billion worth of air tankers; etc.) to Saudi Arabia ultimately failed in the Senate (48-52) after action in the House to stop the sale passed (301-111). It is noteworthy that between the House action and the Senate's, Egyptian Pres. Anwar Sadat was assassinated, heightening tensions in the region and strengthening Pres. Reagan's appeals to Congress to approve a sale he called necessary to protect U.S. national interests. In lobbying Congress personally in this case, Pres. Reagan promised a hospital to a senator from Washington state, a power plant for a Montana Democrat, a political appointment to an Iowa senator, and promised not to campaign against an Arizona Democrat's re-election in order to swing enough votes to turn back Congress' attempt to stop the sale (Spanier and Uslaner: 279). While the main opposition to the sale came from pro-Israel members of Congress, they did not lose entirely: Reagan promised to cancel the sale if Saudi Arabia used the planes for anything other than defensive purposes; and, less than five weeks later, aid to Israel was increased by $475 million more than the Administration had requested (Spanier and Uslaner: 280).
6. 1984-86: U.S. DoD owned missiles were given to the CIA, then sold to Iran; these and other arms supplied by the U.S. to the "Contras" (a rebel group then opposed to the government of Nicaragua) all may have been done in violation of the Act. Congress was not informed in advance, nor given formal opportunity to exercise the provisions of the Act.
7. 1986: Arms Sales to Saudi Arabia. Reagan introduced a $354 million package, both chambers heavily said No, by Joint Resolution. Reagan vetoed it. Reagan then offered to eliminate Stinger missiles (and certain other weapons, e.g. M-1 tanks, F-15 aircraft) from the Saudi package, if the rest of the sale was authorized. A pared down package one third its original size finally was sent to the Congress, and in the vote to override the veto of the entire package by Joint Resolution, 34 senators voted to sustain the veto in the Senate, the exact number needed to prevent override. But the Stingers were not exported.
8. 1987-88: Arms Sales to Saudi Arabia. A proposed arms package to Saudi Arabia was dropped in the face of Congressional opposition prior to a vote being held. Reagan modified the proposed sale to not include Maverick missiles; and the sale was not disapproved by Congress (1987).
9. 1988: Arms Sales to Kuwait. Informal Congressional opposition, backed up by the threat of use of the AECA, again forced deletion of Maverick missiles from a sale package including F-18s to Kuwait.
10. 1990: Senate enacts Pressler Amendment, which bars export to Pakistan of 28 nuclear-capable F-16C aircraft paid for in full by Pakistan, due to concern over Pakistan's nuclear weapons development program. After a 1998 Pakistani bomb was exploded, the F-16C aircraft were instead sold to New Zealand, and with the earlier passage of the Glenn Amendment to the AECA (section 102b), new sanctions were imposed on Pakistan (and India). The Bush Administration had opposed the Pressler Amendment, but the Clinton Administration had no choice but to enforce the provisions of the Glenn Amendment. It requires that if a President determines any state has received or developed nuclear weapons in violation of the Nuclear Proliferation Prevention Act of 1994, Congress must be notified and sanctions must be imposed, including termination of U.S. Government credit, most economic aid, all military aid, and other measures. Section 102 sanctions may be lifted only by Congressional action through Joint Resolution. The Brownback Amendment (Oct. 1998) permitted the President to waive some of the sanctions for one year, and on December 1, 1998, Pres. Clinton suspended some, but not all sanctions.
Robert Cushman, Leading Constitutional Decisions15th edition (Englewood Cliffs, NJ: Prentice-Hall, 1977)
Cecil Crabb, Invitation to Struggle fourth edition (Washington: CQ Press, 1992): Chapter 4.
Thomas Cronin, "President, Congress and Foreign Policy," in The Domestic Sources of American Foreign Policy, Charles W. Kegley and Eugene R. Wittkopf, eds. (New York: St. Martin's, 1988): 149-165.
Louis Fisher, The Politics of Shared Power third edition (Washington: CQ Press, 1993): 174-75.
John Spanier and Eric Uslaner, American Foreign Policy and the Democratic Dilemma sixth edition (NY: MacMillan, 1993).
Thomas Paterson, et.al., American Foreign Relations: A History Since 1895 fourth edition (Lexington MA: Heath, 1995): 593.
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