          Congressional Disapproval of AWACS Arms Sale

T he provision in § 36(b) of the Arms Export Control A ct for congressional disapproval
   by concurrent resolution o f a proposed sale o f military equipment is unconstitutional
   under the Presentation Clauses o f the Constitution; since a resolution o f disapproval
   under § 36(b) has the force and effect o f law, the President must be given the opportu­
   nity to approve or veto such congressional action.
T he legislative veto in § 36(b) impermissibly intrudes on the President’s authority to
   execute the laws and to conduct the N ation’s foreign relations, in violation of the
   principle o f separation of powers.
T he legislative veto in § 36(b) is severable from the other provisions of the Arms Export
   C ontrol A ct, since nothing in the legislative history o f that A ct indicates an intent to
   deprive the President altogether o f his pow er to transact foreign military sales.
T he “report-and-wait” provision in § 36(b), w hich requires that the President report arms
   sales to the Congress and delay the transaction for a 30-day period pending congres­
   sional action to disapprove th e sale through the enactment o f legislation, is not uncon­
   stitutional.
T he President could, consistent with the longstanding position of the Executive Branch
   and w ith the express statements of his tw o immediate predecessors, choose to treat a
   congressional resolution of disapproval under § 36(b) as a legal nullity. Alternatively,
   the President could avoid th e necessity to submit a proposed arms sale for congres­
   sional review by invoking th e emergency provision o f § 36(b), o r by making a finding
   that the sale is vital to the national security interests o f the United States under the
   International Security and Developm ent Cooperation A ct of 1980.

                                                                         October 28, 1981
 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

   On October 1, 1981, the President transmitted to Congress a certifica­
tion 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 memo­
randum 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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            I. Constitutional Invalidity of the Legislative Action

   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 con­
gressional 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. More­
over, § 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 discre­
tion 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 op­
posed 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. For­
eign 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 amend­
ment, 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 con­
       duct the foreign relations of the United States. The Presi­
       dent cannot function effectively in domestic matters, and
       speak for the nation authoritatively in foreign affairs, if his
       decisions under authority previously conferred can be re­
       versed by a bare majority of the Congress. Also, the
       attempt of Congress to become a virtual co-administrator
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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 reso­
       lution by the Congress, have all been deleted. . . . The
       manifest incompatibility of such provisions with the ex­
       press 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, result­
       ing in the erosion of the fundamental constitutional dis­
       tinction 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 reten­
       tion . . . of the ‘legislative veto’ provision regarding
       major governmental sales of military equipment and serv­
       ices. This is not a new provision, but has been in the law
       since 1974. To date, no concurrent resolution of disap­
       proval under section 36(b) has been adopted, and the
       constitutional question has not been raised directly. Al­
       though I am accepting [the bill] with this provision in­
       cluded, 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 enti­
tled 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 disap­
         proval. Such provisions raise major constitutional ques­
         tions, 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 exe­
         cution of the laws, a responsibility reserved for the Presi­
         dent 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 diplo­
matic 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 so-
called 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 o f 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 Subcom­
mittee on Rules of the House o f the House Committee on Rules, respectively.

                                               311
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 an d 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 Na­
tion’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 re­
served 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 pre­
rogatives 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 o f the special role of the President in conduct­
ing 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

  *N o t e : T he Supreme Court’s opinion in Chadha v. IN S is printed at 462 U.S. 919 (1983). Ed.

                                                  312
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 consummat­
ing 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 Okla­
homa, 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 L R 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 congres­
sional disapproval. Although the enactment of a congressional disap­
proval 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 indi­
cate 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 Con­
gress—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 unconstitu­
tional. For this reason, w e 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 certifica­
         tion, 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 emer­
         gency exists which requires the proposed sale in the na­
         tional 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 emer­
         gency circumstances which necessitate the immediate issu­
         ance of the letter of offer and a discussion of the national
         security interests involved.
22 U.S.C. § 2776(b)(1). W e 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 W e 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 emer­
gency determination, so long as he complies with the procedural re­
quirements 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 Presi­
dent 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 disap­
proval. 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 ac­
       cruing to the United States and any Act authorizing or
       appropriating funds for use under the Arms Export Con­
       trol 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

                                   315
        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 subsec­
         tion, 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 Repre­
sentatives and the chairman of the Senate Foreign Relations Commit­
tee. 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 contem­
plates that the President, having taken these steps, could transact a
foreign military sale notwithstanding any concurrent resolution of dis­
approval. 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 Presi­
dent 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 predeces­
sors, choose to treat the congressional resolution of disapproval as a
legal nullity because it violates principles of separation of powers as
                                    316
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 heodore   B. O l s o n
                                       Assistant Attorney General
                                        Office o f Legal Counsel




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