Congressional Disapproval of AW ACS Arms Sale

The provision in § 36(b) of the Arms Export Control A ct 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 o f 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.

T he 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 A ct of 1980.

October 28, 1981

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

On October 1, 1981, the President transmitted to Congress a certification of intent to offer certain military equipment, including Airborne 

Warning and Control System (AWACS) aircraft, to the government of 

Saudi Arabia. Section 36(b) of the Arms Export Control Act, 22 U.S. 

C. § 2776(b) (1976 and Supp. IV 1980), provides that the letter of offer 

shall not be issued “if the Congress, within thirty calendar days after 

receiving such certification, adopts a concurrent resolution stating that 

it objects to the proposed sale.” The House of Representatives has 

already voted to disapprove the sale, and there is significant possibility 

that the Senate will also adopt a resolution of disapproval. This memorandum discusses several theories under which we believe the President 

could sell the equipment to Saudi Arabia notwithstanding the adoption 

by Congress of a concurrent resolution disapproving the sale.

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This Administration, like all previous administrations since 1934, has 

taken the position that so-called legislative vetoes which interfere with 

the President’s constitutional responsibilities are unconstitutional. We 

believe that § 36(b) is such a provision. It purports to authorize congressional action having the force and effect of legislation without 

providing for presentation to the President for his approval or veto, as 

required by Article I, § 7, clauses 2 and 3 of the Constitution. Moreover, § 36(b) represents a particularly severe congressional intrusion 

into the prerogatives vested in the President by the Constitution to 

execute the law and to conduct the Nation’s foreign relations.

For these reasons, we believe that the President would have discretion to proceed with the proposed sale despite a congressional veto. Of 

course, the President could, as a matter of policy, determine not to 

issue the letter of offer in view of the congressional expression of 

disapproval.

A. History o f § 36(b)

Every President who has commented on § 36(b) has strongly opposed its provision for a congressional veto of arms sales to foreign 

governments. The Foreign Military Sales Act of 1968, Pub. L. No. 90- 

629, 82 Stat. 1320, gave the President broad discretion to sell defense 

articles and services to friendly countries for their internal security, 

self-defense, and other needs. There was no provision for congressional 

disapproval of proposed sales. The predecessor of § 36(b) was first 

enacted in 1974 as part of omnibus foreign assistance legislation. Foreign Assistance Act of 1974, Pub. L. No. 93-559, §45, 88 Stat. 1795, 

1814. President Ford signed the legislation without commenting on the 

congressional disapproval provision. 11 Weekly Comp. Pres. Doc. 3 

(Dec. 30, 1974).

Two years later, President Ford vetoed a bill re-enacting the amendment, modifying it in several minor respects, and incorporating further 

legislative veto provisions. President Ford stated that the congressional 

veto provisions of the bill would erode “the basic distinction between 

Legislative and Executive functions”:

Such legislation would pose a serious threat to our system 

of government, and would forge impermissible shackles 

on the President’s ability to carry out the laws and conduct the foreign relations of the United States. The President cannot function effectively in domestic matters, and 

speak for the nation authoritatively in foreign affairs, if his 

decisions under authority previously conferred can be reversed by a bare majority of the Congress. Also, the 

attempt of Congress to become a virtual co-administrator

I. Constitutional Invalidity of the Legislative Action

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in operational decisions would seriously detract it from its 

proper legislative role. Inefficiency, delay, and uncertainty 

in the management of our nation’s foreign affairs would 

eventually follow.

12 Weekly Comp. Pres. Doc. 828, 829 (May 7, 1976).

Thereafter, when Congress presented to him a revised version of the 

bill which eliminated several congressional veto provisions, President 

Ford signed it into law but specifically stated his reservations about the 

remaining veto provision in § 36(b). The President stated:

I am especially pleased to note that with one exception 

the constitutionally objectionable features of [the bill], 

whereby authority conferred on the President by law 

could be rescinded by the adoption of a concurrent resolution by the Congress, have all been deleted. . . . The 

manifest incompatibility of such provisions with the express requirements of the Constitution that legislative 

measures having the force and effect of law be presented 

to the President for approval, and if disapproved, be 

passed by the requisite two-thirds majority of both Houses 

was perhaps the single most serious defect of the previous 

bill and one which went well beyond security assistance 

and foreign affairs in its implications. Moreover, such 

provisions would have purported to involve the Congress 

in the performance of day-to-day executive functions in 

derogation of the principle of separation of powers, resulting in the erosion of the fundamental constitutional distinction between the role of the , Congress in enacting 

legislation and the role of the Executive in carrying it out.

The one exception to this laudable action is the retention . . . of the ‘legislative veto’ provision regarding 

major governmental sales of military equipment and services. This is not a new provision, but has been in the law 

since 1974. To date, no concurrent resolution of disapproval under section 36(b) has been adopted, and the 

constitutional question has not been raised directly. Although I am accepting [the bill] with this provision included, I reserve my position on its constitutionality if the 

provision should ever become operative.

12 Weekly Comp. Pres. Doc. 1104, 1105 (July 1, 1976).

President Carter expressed similar views when an enrolled bill entitled the “International Security Assistance Act of 1977” was presented 

to him for signature. That bill amended the Arms Export Control Act 

to apply the § 36(b) veto procedure to certain other transactions and to 

add a congressional veto to third-party transfers. Pub. L. No. 95-92,

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§§ 16, 20, 91 Stat. 614, 622, 623. President Carter stated that these 

provisions would:

let Congress prevent Presidential action authorized under 

law simply by adopting a concurrent resolution of disapproval. Such provisions raise major constitutional questions, since Article I, § 7 of the Constitution requires that 

congressional action having the force and effect of law be 

presented to the President for approval. These provisions 

also have the potential of involving Congress in the execution of the laws, a responsibility reserved for the President under the Constitution. I am approving [the bill] 

because of its importance to our foreign relations and 

national security, but I must express my deep reservations 

about these two provisions and my intention to preserve 

the constitutional authority of the President.

13 Weekly Comp. Pres. Doc. 1185, 1186 (Aug. 5, 1977).

B. Constitutionality o f the § 36(b) Procedure

The possible rejection by Congress of the President’s decision to sell 

AW ACS aircraft and other military equipment to the government of 

Saudi Arabia sets this controversy in a political, military, and diplomatic context. Nevertheless, the constitutional issues raised by § 36(b) 

are fundamentally similar in most respects to those raised by legislative 

vetoes attached to other grants of power. This Administration, like 

every previous administration since 1934, has taken the position that socalled legislative vetoes which impermissibly interfere with the power 

vested in the President by the Constitution are unconstitutional. We 

believe that the provision for congressional disapproval in § 36(b) is 

unconstitutional for two fundamental reasons.1

First, § 36(b) is unconstitutional under the Presentation Clauses of 

Article I, § 7, clauses 2 and 3 of the Constitution. These clauses require 

that all bills (clause 2) and other congressional actions having the force 

and effect of legislation (clause 3) must be presented to the President 

for approval. If the President approves such a measure, it becomes law; 

if he vetoes the measure by returning it with objections to its House of 

origin, it does not become a law unless two-thirds of each House votes 

to override the President’s veto.

It is, we believe, incontrovertible that a resolution of disapproval 

under § 36(b) has the force and effect, even if not the traditional form, 

of legislation. The President is given statutory authority to negotiate

1 The constitutional objections discussed in this memorandum have been articulated in considerably 

greater detail in testimony furnished to Congress by this Administration by Assistant Attorney 

Genera], Office of Legal Counsel, Theodore B. Olson on April 23, 1981, and October 7, 1981, to the 

Subcommittee on Agency Administration of the Senate Committee on the Judiciary and the Subcommittee on Rules of the House of the House Committee on Rules, respectively.

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arms sales with, and make delivery to, foreign nations. Disapproval of a 

proposed sale under § 36(b) would nullify the President’s exercise of 

that authority as applied to a particular sale. Any congressional action 

disapproving a proposed sale has the function, the force, and the effect 

of legislation, because it narrows the discretion which Congress has 

previously vested in the President by statute. Section 36(b), however, 

does not provide the President with the opportunity to approve or veto 

such congressional action, as required by the Presentation Clauses. In 

requiring only a concurrent resolution for disapproval of a proposed 

arms sale, § 36(b) unconstitutionally infringes on the power to veto 

legislation vested in the President by Article 1, § 7, clauses 2 and 3. See

Chadha v. Immigration and Naturalization Service, 634 F.2d 408, 421-35 

(9th Cir. 1980), cert, granted and jurisdiction postponed, 454 U.S. 812 

(1981).*

Second, and equally fundamental, § 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. Under our system of government, it is the function of Congress 

to legislate, as it has done in the present case by authorizing the 

President to negotiate and consummate military sales to foreign nations. 

It is equally the function of the Executive Branch to execute the laws 

which Congress has passed, as the President has done in the present 

case by negotiating the sale of AW ACS aircraft and other military 

equipment to Saudi Arabia. Just as the President may not exercise the 

legislative power—for example, by taking actions outside the scope of 

statutory authorization or his inherent constitutional authority—so the 

Congress may not impermissibly intrude on the President’s power to 

execute the law.

Section 36(b), however, purports to authorize Congress to act as a 

partner with the President in the statutorily authorized sale of arms to 

foreign nations. Not only is Congress a partner, but it is, in a sense, a 

superior of the President in this process, since the Congress has reserved to itself the purported authority to countermand an Executive 

Branch decision. While the separation of powers is not absolute or 

airtight, the type of arrogation of executive power contemplated by 

§ 36(b) represents an impermissible intrusion on the constitutional prerogatives of the Executive Branch. See Chadha, 634 F.2d at 420-22.

The intrusion on executive prerogatives is particularly severe in the 

case of § 36(b) because of the special role of the President in conducting the Nation’s foreign relations. While Congress has an important role 

to play in the foreign affairs context, as evidenced by the Senate’s 

power to ratify treaties and the power of Congress to enact legislation 

bearing on foreign relations, it is the President who acts as the ultimate

*No te: The Supreme Court’s opinion in Chadha v. IN S is printed at 462 U.S. 919 (1983). Ed.

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spokesman for the Nation in the world community. See generally Dames

& Moore v. Regan, 453 U.S. 654 (1981); United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 319 (1936). We do not suggest that the 

President’s power to conduct foreign relations is so plenary as to 

disable the Congress from passing a statute—signed by the President or 

enacted over his veto—disapproving an arms sale. We do believe, 

however, that in his conduct of foreign relations the President must 

enjoy at least the full degree of discretion vested in him by legislation, 

without congressional interference with his performance of the delicate, 

and quintessentially executive, function of negotiating and consummating arms sales with foreign nations.

C. Severability

In light of our concludion that § 36(b) is unconstitutional insofar as it 

authorizes the Congress to enact a concurrent resolution disapproving a 

sale of military equipment or services which the President intends to 

carry out, it is necessary to consider whether the invalid part of § 36(b) 

is severable from other portions of § 36(b) or of the Arms Export 

Control Act generally. If the provisions are not severable, the other 

statutory requirements or authorizations might fall with the legislative 

veto provision of § 36(b). Cf. McCorkle v. United States, 559 F.2d 1258, 

1260 (4th Cir. 1977), cert, denied, 434 U.S. 1011 (1978).

The question of severability is ultimately one of legislative intent. 

Sloan v. Lemon, 413 U.S. 825, 833-34 (1973). The legal standard is 

supplied by Champlin Refining Co. v. Corporation Comm'n o f Oklahoma, 286 U.S. 210, 234 (1932): “Unless it is evident that the legislature 

would not have enacted those provisions which are within its power, 

independently of that which is not, the invalid part may be dropped if 

what is left is fully operative as a law.” This standard applies even in 

the absence of any express provision of severability. “The cardinal 

principle of statutory construction is to save and not to destroy.” Tilton

v. Richardson, 403 U.S. 672, 684 (1971) (quoting N LR B v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 30 (1937)).

We have carefully examined the relevant legislative history and have 

concluded that the legislative veto device in § 36(b) is severable from 

the remainder of that section and from the Arms Export Control Act 

generally. The President’s power to sell military equipment and services 

to foreign nations has for many years been an important aspect of U.S. 

foreign policy. Prior to 1974, such sales were not subject to congressional disapproval. Although the enactment of a congressional disapproval provision in 1974 did evidence a congressional intent to exercise 

greater oversight and control of the President’s decisions in this area, 

we have found nothing in the legislative history of the 1974 legislation 

or of subsequent legislation re-enacting and amending § 36(b) to indicate that Congress, in the absence of a congressional veto provision,

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would have deprived the President altogether of his power to transact 

foreign military sales. In light of the importance of foreign military 

sales to the conduct of the Nation’s foreign relations, and in light of the 

alternative for guiding Executive Branch discretion available to Congress—most notably the “report-and-wait” provision also contained in 

§ 36(b) 2—we do not find the requisite evidence that Congress would 

have denied the President’s authority to authorize foreign military sales 

were the legislative disapproval provision of § 36(b) held unconstitutional. For this reason, we conclude that the legislative veto provision 

of § 36(b) is severable from the other provisions of the legislation.

II. Emergency Provision!

Section 36(b) expressly contemplates that in emergency situations the 

President may transact a foreign military sale without submitting to 

congressional review. The section provides:

The letter of offer shall not be issued if the Congress, 

within thirty calendar days after receiving such certification, adopts a concurrent resolution stating that it objects 

to the proposed sale, unless the President states in his 

certification that an emergency exists which requires such 

sale in the national security interests of the United States.

If the President states in his certification that an emergency exists which requires the proposed sale in the national security interest of the United States, thus waiving 

the congressional review requirements of this subsection, 

he shall set forth in the certification a detailed justification 

for his determination, including a description of the emergency circumstances which necessitate the immediate issuance of the letter of offer and a discussion of the national 

security interests involved.

22 U.S.C. § 2776(b)(1). We understand that the President did not include a 

finding of a national security emergency in his certification transmitted to 

Congress on October I. Thus, to trigger this provision, it would be 

necessary for the President to resubmit his certification supplemented by 

the emergency findings required by §36(b). The legislative history of the 

emergency provision does not provide clear guidance on what situations 

could be considered emergencies or whether the President’s determination 

could be challenged in Congress or in court. It is our opinion, however, that

2 We believe that the requirement in § 36(b) 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 plenary legislation is constitutional During this 30-day period, or indeed until a letter of offer 

is actually issued, Congress could take action to prevent the sale by enactment of legislation subject to 

the approval or disapproval of the President under Article 1, § 7 of the Constitution.

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the President enjoys virtually unlimited discretion to make an emergency determination, so long as he complies with the procedural requirements regarding including this determination in his certification 

and making detailed factual findings as specified. Once the President 

has made an emergency determination, it is our opinion that the sale 

could proceed immediately and could not be blocked by anything short 

of plenary legislation enacted by the Congress and signed by the President or passed over his veto. Moreover, we believe that the President’s 

determination that an emergency exists for purposes of § 36(b) would 

not be reviewable in court. Cf. Sordino v. Federal Reserve Bank o f New

York, 361 F.2d 106, 109 (2d Cir. 1966), cert, denied, 385 U.S. 898 (1966) 

(courts will not review the President’s determination that a national 

emergency exists, because such a determination is “peculiarly within 

the province of the chief executive.”).

While this avenue of avoiding the necessity to submit proposed sales 

for congressional review and potential disapproval is available to the 

President as a matter of law, there may be sound reasons of policy to 

avoid use of the emergency provision. The President did not make an 

emergency finding when he initially submitted that certification to 

Congress on October 1; it may be difficult to argue that there has been 

any change in circumstances other than the fact of congressional disapproval. Moreover, the argument that an emergency exists could be met 

by the objections that (a) even if approved, the AWACS aircraft 

cannot be delivered and made fully operational for a substantial period 

of time; (b) Saudi Arabia may be able to obtain similar aircraft from 

other western nations if the AWACS sale is disapproved; and (c) there 

appears to be no imminent threat to Saudi Arabia or U.S. security 

interests in the region which has not existed for some time. However, 

these are matters of policy as to which we can offer no authoritative or 

fully informed opinion.

III. Consultation with Congress

The International Security and Development Cooperation Act of 

1980, Pub. L. No. 96-533, §47, 94 Stat. 3131, 3140, provides a third 

possible avenue for transacting the sale notwithstanding congressional 

disapproval. That statute provides, in pertinent part:

The President may make sales, extend credit, and issue 

guarantees under the Arms Export Control Act, without 

regard to any provision of this Act, the Arms Export 

Control Act, any law relating to receipts and credits accruing to the United States and any Act authorizing or 

appropriating funds for use under the Arms Export Control Act, in furtherance of any of the purposes of such 

Act, where the President determines, and so notifies in 

writing the Speaker of the House of Representatives and

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the chairman of the Committee on Foreign Relations of 

the Senate, that to do so is vital to the national security 

interests of the United States.

Before exercising the authority granted in this subsection, the President shall consult with, and shall provide a 

written policy justification to the Committee on Foreign 

Affairs and the Committee on Appropriations of the 

House of Representatives and the Committee on Foreign 

Relations and the Committee on Appropriations of the 

Senate.

Again, the President has not taken action to trigger this provision by 

providing written notification to the Speaker of the House of Representatives and the chairman of the Senate Foreign Relations Committee. The President would further have to “consult with” the specified 

congressional committee for an unstated period of time before the sale 

could be completed and would have to provide the required written 

policy justification. This section, we believe, rather clearly contemplates that the President, having taken these steps, could transact a 

foreign military sale notwithstanding any concurrent resolution of disapproval. It seems quite possible that the President could deem the 

required period of consultation with Congress to have been already 

fulfilled, or at least considerably foreshortened, by the extensive debates 

which have already occurred in the Congress on the arms package. 

Moreover, like the emergency provision of § 36(b), we believe that a 

presidential finding that a sale is vital to the national security interests 

of the United States would not be subject to judicial review.

This route may have certain advantages, as a matter of policy, over 

the emergency provision of § 36(b). While it may be rather difficult for 

the President to argue that an emergency exists now which did not 

exist on October 1, he might state with considerable justification that it 

has been the consistent, publicly held view of the Administration that 

the arms sale was vital to U.S. national security interests. Again, these 

considerations involve policy judgments as to which we are not able to 

offer authoritative or fully informed advice. That judgment can only be 

made by the President, in consultation with the Department of State 

and with other elements of the national security establishment.

IV. Conclusion

In summary, we have identified three theories under which the President could proceed with the sale of AWACS aircraft and other military 

equipment to the government of Saudi Arabia. First, 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 the congressional resolution of disapproval as a 

legal nullity because it violates principles of separation of powers as

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embodied in the Presentation Clauses and in the executive function. 

Second, he . could (if in his considered discretion such a judgment is 

possible) initiate procedures under the emergency exception to the 

congressional review provision of § 36(b). Third, he could initiate the 

consultation process contemplated by the International Security and 

Development Cooperation Act of 1980.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

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