Waiver of Congressional Notification Period in the Arms Export Control Act

Waiver of Congressional Notification Period in the Arms Export Control Act

Legal Sidebari

Waiver of Congressional Notification Period
in the Arms Export Control Act
May 29, 2019
The Trump Administration’s notification to Congress on May 24, 2019 regarding the sales of arms to
Saudi Arabia, the United Arab Emirates, and Jordan as an emergency measure, avoiding the statutorily
required 30-day congressional notification requirement, has stirred a debate concerning the propriety of
the waiver. Specifically, some argue that the waiver authority under the relevant section of the Arms
Export Control Act (AECA) (as amended) is effective only with respect to export licenses to NATO and
certain other allied countries and certain exports of satellite communications equipment, both of which
ordinarily require a 15-day notification period. Others read the relevant statute as permitting a waiver also
with respect to arms sales to countries that ordinarily require a 30-day waiting period. As a result of an
amendment Congress enacted in 2000, § 36(c) of the AECA seems ambiguous on this point. (Secretary of
State Michael Pompeo also asserted authority under paragraphs 36(b)(1) and 36(d)(2), covering Foreign
Military Sales offers and commercial technical assistance or manufacturing licensing agreement, both of
which appear to be covered by waiver authorization.)
Section 36(c) of the AECA covers commercially licensed arms sales and sales of defense services, for
which Congress must be formally notified 30 calendar days (in the case of non-allies) before the export
license is issued if the sale is of major defense equipment valued at $14 million or more, or defense
articles or services valued at $50 million or more. However, § 36(c)(2) gives the President authority to
issue such an export license without the waiting period for congressional notification if he states that
immediate issue is necessary “in the national security interests of the United States,” and provides a
justification. (For more information on the congressional notification procedure under the AECA, see
CRS report Arms Sales: Congressional Review Process.)
Prior to enactment of § 102(c) of the Security Assistance Act of 2000, § 36(c)(2) of the AECA provided:
(2) Unless the President states in his certification that an emergency exists which requires the
proposed export in the national security interests of the United States, a license for export described
in paragraph (1)-
(A) in the case of a license for an export to the North Atlantic Treaty Organization, any member
country of that Organization or Australia, Japan, the Republic of Korea, Israel, or New Zealand,
shall not be issued until at least 15 calendar days after the Congress receives such certification,
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and shall not be issued then if the Congress, within that 15-day period, enacts a joint resolution
prohibiting the proposed export;
(B) in the case of any other license, shall not be issued until at least 30 calendar days after the
Congress receives such certification, and shall not be issued then if the Congress, within that
30-day period, enacts a joint resolution prohibiting the proposed export.
If the President states in his certification that an emergency exists which requires the proposed
export in the national security interests of the United States, thus waiving the requirements of
subparagraphs (A) and (B) of this paragraph, 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 export license and a discussion of the national security
interests involved.
In the 2000 amendment, Congress redesignated subparagraph (B) as subparagraph (C) and inserted a new
subparagraph (B) providing for a 15-day waiting period prior to the sale of commercial satellite
equipment to certain countries. Critically, Congress did not amend the second portion of paragraph (c)(2)
to include the newly redesignated subparagraph (C) among the provisions that would be waived by the
certification of an emergency necessitating a bypass of the congressional notification period.
Did Congress intend to exempt countries not covered by subparagraphs (A) or (B) from the emergency
waiver provision or merely from the reporting requirements associated with it? It is possible that
Congress did not intend either result, but rather that the omission of subparagraph (C) from the waiver
language was merely an oversight. The legislative history does not suggest an intent to enact far-reaching
changes to the waiver provision. However, courts will not ordinarily interpret a statute by presuming a
drafting error in order to read the new language to comport with earlier versions. Rather, a court would
likely start with the text of the statute as currently written and employ one or more principles or canons of
statutory interpretation to give meaning to all of its words.
As it now stands, the relevant statutory language in § 36(c)(2) reads:
(2) Unless the President states in his certification that an emergency exists which requires the
proposed export in the national security interests of the United States, a license for export described
in paragraph (1)-
(A) in the case of a license for an export to the North Atlantic Treaty Organization, any member
country of that Organization or Australia, Japan, the Republic of Korea, Israel, or New Zealand,
shall not be issued until at least 15 calendar days after the Congress receives such certification,
and shall not be issued then if the Congress, within that 15-day period, enacts a joint resolution
prohibiting the proposed export;
(B) in the case of a license for an export of a commercial communications satellite for launch
from, and by nationals of, the Russian Federation, Ukraine, or Kazakhstan, shall not be issued
until at least 15 calendar days after the Congress receives such certification, and shall not be
issued then if the Congress, within that 15-day period, enacts a joint resolution prohibiting the
proposed export; and
(C) in the case of any other license, shall not be issued until at least 30 calendar days after the
Congress receives such certification, and shall not be issued then if the Congress, within that
30-day period, enacts a joint resolution prohibiting the proposed export.
If the President states in his certification that an emergency exists which requires the proposed
export in the national security interests of the United States, thus waiving the requirements of
subparagraphs (A) and (B) of this paragraph, 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 export license and a discussion of the national security
interests involved. (emphasis added).

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To read the statute as having been amended to add the satellite provision but do nothing more, an
interpreter would essentially have to read the bolded words above out of the statute. In what is sometimes
described as the rule against surplusage, courts do not generally favor such an interpretation.
Consequently, it appears that the omission of subparagraph (C) from the bolded phrase above is
significant.
One means of interpreting the statute would divide the paragraph into two parts, one authorizing an
emergency waiver of three separate requirements and the other specifying congressional reporting
requirements in the event the waiver authority is invoked. Under such a reading, the provision could
plausibly be read to mean that the President may waive subparagraphs (A) through (C), but if the
President waives the requirements of subparagraphs (A) or (B), he is required to set forth a detailed
justification for his determination. But if the President issues an emergency certification waiving the
requirements of subparagraph (C), he need not provide any justification to Congress.
Aside from the seeming unlikelihood that Congress would have intended to apply more stringent
requirements with respect to allies than to non-allies, this reading conceivably suffers from two
interpretive weaknesses. First, Congress could have used a more natural phrasing to achieve that result,
for example, by eliminating the word “thus” and using the word “or” instead of “and” in the bolded
phrase above. Accordingly, a more natural phrasing for that interpretation might state “and waives the
requirements of subparagraphs (A) or (B).”
Second, the phrase “thus waiving the requirements of” is used elsewhere in the AECA apparently to
indicate which requirements are waived in the event of an emergency certification. For example,
subsection 36(d) states, in pertinent part:
(2) A certification under this subsection shall be submitted-
(A) at least 15 days before approval is given in the case of an agreement for or in a country
which is a member of the North Atlantic Treaty Organization or Australia, Japan, the Republic
of Korea, Israel, or New Zealand; and
(B) at least 30 days before approval is given in the case of an agreement for or in any other
country;
unless the President states in his certification that an emergency exists which requires the immediate
approval of the agreement in the national security interests of the United States.
(3) If the President states in his certification that an emergency exists which requires the immediate
approval of the agreement in the national security interests of the United States, thus waiving the
requirements of paragraph (4), he shall set forth in the certification a detailed justification for his
determination, including a description of the emergency circumstances which necessitate the
immediate approval of the agreement and a discussion of the national security interests involved.
(emphasis added).
(4) Approval for an agreement subject to paragraph (1) may not be given under section 2778 of this
title if the Congress, within the 15-day or 30-day period specified in paragraph (2)(A) or (B), as the
case may be, enacts a joint resolution prohibiting such approval
Courts often look to statutory context to review how Congress has employed the same phrase in the same
statute. When Congress uses the same terminology in multiple places within a statute, a court may attempt
to give the same construction to each use of the phrase. Here, it appears that the phrase “thus waiving the
requirements” in subsection (d) indicates which requirements are waived by the emergency certification
and excludes any other requirements in the subsection. Subsection (b) also uses the phrase, apparently to
explain which requirements are subject to waiver (e.g., “thus waiving the congressional review
requirements of this subsection”).

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A second plausible reading of paragraph (c)(2) would read the phrase “thus waiving the requirements” as
indicating which requirements are subject to waiver. Under this view, subparagraph (C) would not be
subject to a waiver at all. Setting aside the seeming unlikelihood that Congress would have taken away
that authority in 2000 without debate, this reading is subject to a structural weakness. Namely, the outset
of the subsection makes clear that (A), (B), and (C) apply “[u]nless the President states in his certification
that an emergency exists….” A reading that then immediately removes the waiver authority for the
requirement in subparagraph (C) stands in tension with the first part of the subsection. But under the
canon known as expressio unius, the omission of an item from a series is presumed to be intentional. Also,
the language “thus waiving the requirements …” could be seen as providing an exception to an earlier
established rule. Such a reading would not render subparagraph (C) superfluous as it would continue in
force the 30-day waiting period for relevant arms sales, with or without an emergency certification.
On the other hand, a court might in some cases interpret statutory language against its practical
consequences, determine those results to be too absurd to express Congress’s will, and chalk it up as a
scrivener’s error. If a court determines legislation is ambiguous, it might look to legislative history to
discern Congress’s intent. Whether any of these methods of interpretation would result in an
interpretation of the AECA that reflects Congress’s will is open to question. Accordingly, Congress might
consider enacting a conforming amendment if necessary to clarify its intent for congressional oversight of
arms sales under § 36, AECA.

Author Information

Jennifer K. Elsea

Legislative Attorney

Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
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