Think Big to Rein in the Arms Trade 

John Ramming Chappell is an Advocacy and Legal Advisor at Center for Civilians in Conflict (CIVIC).

The arms trade and its human consequences have had an outsized impact defining U.S. foreign policy in the Trump era. The United States sells more weapons than the next seven countries combined. For progressives, the use of American-made weapons in atrocities in Yemen and Gaza has been at the center of moral and strategic debates. While the grave consequences of U.S. arms sales are indisputable, the policy debate around U.S. arms transfers has been relatively narrow. Progressives are right to interrogate the human and strategic costs of the U.S. arms trade. But when it comes to solutions, they should think bigger.

The Congressional Right To Withhold Arms

The framework governing the U.S. arms trade today is articulated in the Arms Export Control Act, and, to a lesser extent, the Foreign Assistance Act. Under the current framework, the State Department is generally free to sell weapons, or grant licenses to companies to sell weapons, without congressional input, although it may seek legislators’ input as a courtesy or out of respect for norms. For sales exceeding a specified dollar threshold ($50 million for many countries and weapon types), the President must inform Congress of the proposed sale before entering into an agreement or granting an export license to a company for the weapons in question. Congress nominally has an opportunity to block a notified sale through a joint resolution of disapproval using privileged procedures that allow any senator to seize floor time. 

In practice, blocking a sale requires a two-thirds majority in both the House and the Senate, and Congress has never managed to block a sale in this way. In addition to the basic structure of the congressional-executive relationship, Congress has enacted laws to prohibit arms sales to specific countries or countries that meet specified criteria, although implementation of the latter falls to executive branch officials.

This framework is not inevitable. Under the Foreign Commerce Clause of the U.S. Constitution, all authority to regulate the arms trade belongs to Congress. It has since delegated much of that authority to the President, but Congress could reclaim it by passing legislation at any time. This allocation differs from constitutional war powers, for example, which are shared between the president and Congress. There is comparatively little debate about the constitutional separation of powers over arms sales because it is clear-cut and in Congress’s favor. Due to Congress’s expansive power to regulate arms export, the possible arrangements for an arms exports framework are extensive.

Since the earliest days of the Constitution, Congress has passed laws to control and limit arms sales in the national interest. Congress prohibited all arms exports from 1794 to1795 and 1797 to1800. General prohibitions also took effect during the American Civil War and World War I. An 1898 law authorized the president to block exports of war materiel to Spanish territory during the Spanish-American War, and a law enacted in 1912 and then amended several times thereafter allowed for arms embargoes on Latin American countries during civil unrest. Under the Neutrality Act of 1935, a mandatory arms embargo applied to all countries engaged in interstate war. Since the 1970s, Congress has enacted universally applicable prohibitions on arms sales based on human rights and humanitarian criteria. Congressionally mandated country-specific embargoes have applied to dozens of countries since the 18th century.

Rifling Through The Recent Past

For the arms industry, arms sales bureaucrats at the State Department, and hawkish legislators, the problem with U.S. arms sales is that they are too few and too slow. In collusion with the Trump administration, House Republicans are pushing for fewer sales to require congressional notification and to make it easier to rush arms sales through the State Department faster. 

Advocates for accountability in the arms trade have mostly offered proposals that tinker at the edges of the existing arms export control framework. Legislators have sought the faithful implementation of restrictions already on the books. The top Democrats on the congressional foreign affairs committees have proposed a package of reforms to close loopholes and introduce some new restrictions within the existing framework. A new bill from Rep. Sara Jacobs and other House Foreign Affairs Committee Democrats would require a system to track when American-made weapons are used to harm civilians or violate international law. These are much-needed efforts that, if successful, will lead to a better arms export system that better protects civilians and promotes accountability for human rights abuses. But they do not change the more fundamental issues of congressional acquiescence and presidential overreach.

Attention to the arms trade in the Trump and Biden administrations has centered on the use of U.S. weapons in atrocities in Yemen and Gaza. In Yemen, the Saudi-led coalition used precision-guided munitions from the United States in attacks that killed civilians. In August 2018, a Paveway bomb manufactured by General Dynamics in Texas killed at least 26 children when it hit a school bus in Dhahyan, Yemen. The war also plunged Yemen into the world’s worst humanitarian crisis. Between January 2017 and August 2020, the State Department approved 4,221 arms sales to Saudi Arabia even as evidence mounted of atrocities by the Saudi-led coalition. Criticism of the US-Saudi relationship mounted after the murder of Jamal Khashoggi in October 2018, and congressional efforts to pass joint resolutions of disapproval followed. In July 2019, President Trump vetoed three such resolutions that Congress passed on a bipartisan basis. As a presidential candidate, Joe Biden pledged to make Saudi Arabia a pariah, and he announced early in his presidency that the United States would no longer sell “offensive” weapons to the kingdom. But by 2022, he visited Crown Prince Muhammad bin Salman in Jeddah, and in 2024, he lifted the ban on offensive weapons exports, citing improvements in Saudi civilian protection practices. The system that allowed sales to Saudi Arabia to continue throughout the Trump years remains intact.

Since October 2023, debates around the U.S. arms trade have centered on Gaza. After Hamas’ October 7 attacks in Israel, the Israeli government mounted a bombing campaign in Gaza that has killed at least 64,700 Palestinians. Investigators have repeatedly confirmed the use of American bombs in war crimes. The United States delivered 90,000 tons of arms to Israel from October 7, 2023 to May 2025 and provided almost $22 billion in taxpayer funds to Israel. Congressional attention has often focused on Israeli authorities’ sustained restrictions on humanitarian aid deliveries to Gaza, which have subjected Palestinians in Gaza to famine. U.S. law prohibits arms sales to countries that restrict U.S. humanitarian aid, but the Biden administration refused to apply that law or to cut off aid to any Israeli military unit under the Leahy law, which bans military aid to units that have committed a gross violation of human rights. 

Under congressional pressure, the Biden administration issued a policy on February 24, 2024 requiring assurances that the Israeli government would facilitate humanitarian access and use weapons in compliance with international humanitarian law. But when it came time to report on the credibility of those assurances and Israeli eligibility to continue receiving U.S. arms in May 2024, the Biden administration concluded that weapons sales to Israel could continue. During his presidency, President Biden restricted U.S. transfers of 2,000-pound bombs to Israel and held up a sale of rifles likely intended for settler militias, but otherwise kept weapons flowing. President Trump has reversed all restrictions and endorsed the forced displacement of Palestinians out of Gaza. During both the Biden and Trump administrations, Senator Bernie Sanders has forced three sets of joint resolution of disapproval votes on U.S. arms sales to Israel, with the most recent garnering support from a majority of the Senate Democratic caucus.

In the Yemen and Gaza arms debates, Congress criticized U.S. sales to Saudi Arabia and Israel without revisiting the structures that made U.S. complicity in atrocities possible. In the context of an ongoing rule-of-law crisis, Congress cannot trust the president to faithfully implement the law.  

This isn’t the first time the United States has experienced a rule-of-law crisis centering on arms sales – the Iran-Contra affair revolved around the Reagan administration’s efforts to evade a congressional ban on arms transfers to the Nicaraguan Contras. The congressional investigation that followed barely scrutinized the administration’s violation of the law, focusing instead on illicit transfers of funds. The ring leaders of the conspiracy thrived despite their involvement in the scandal, with Reagan’s vice president, George H.W. Bush, being elected president soon after.  

The human costs of U.S. arms sales have rarely drawn as much public attention as they do today. Preventing harm in the future requires looking at the big picture. Vigorous public debates about the U.S. arms trade should induce legislators to revisit the first principles of the arms export framework. Under the current arms export control framework, the game is rigged in the White House’s favor, despite Congress having all the constitutional power. Congress seems to have forgotten that it can rewrite the rules. They have tried before and should do so again.

The first version of the Arms Export Control Act that Congress passed would have created a very different system than the one that exists today. In 1975, Senator Hubert Humphrey introduced the International Security and Arms Export Control Act “one ofs his crowning final achievements,” according to his aide and later New Mexico governor Bill Richardson. The bill included a $9 billion annual ceiling on arms sales, a prohibition on security assistance to governments violating human rights, and required congressional approval for military advisory missions after 1977. President Ford vetoed it, forcing Congress to introduce a diluted version that forms the basis for the arms export oversight framework today. Some principles from Senator Huphrey’s original bill were incorporated into President Carter’s 1977 conventional arms transfer policy. But implementation of the policy was lackluster, and President Reagan quickly rescinded it upon entering office.

Long before he became the face of unconditional arms sales to Israel, Senator Joe Biden championed an effort to restructure the arms trade. INS v. Chadha, a 1983 Supreme Court case, had effectively raised the congressional threshold to block an arms sale through a joint resolution of disapproval from a simple majority to a two-thirds supermajority. Soon after, President Reagan vetoed a joint resolution of disapproval to block a major arms sale to Saudi Arabia, and the Senate failed to overturn a presidential veto. Before Chadha, a veto would not have been possible. Concerned about Chadha’s implications for congressional oversight of the arms trade, Senator Biden introduced a bill to require affirmative congressional approval for major arms sales to countries other than NATO members and a few other allies. The Reagan administration and the arms industry opposed it.

In 1993, Sen. Mark Hatfield and Rep. Cynthia McKinney introduced the Code of Conduct on Arms Transfers Act as part of an international, civil society-driven effort to rein in the arms trade. In addition to requiring a code of conduct, the bill only allowed arms sales to countries if the president could certify that they promoted democracy, respected human rights, did not engage in aggression, and participated in the United Nations Register of Conventional Arms. Unlike more common waiver provisions, the president had to request exemptions from Congress, which had to affirmatively vote.  

The most recent legislative effort to really shift the distribution of arms transfer authorities between Congress and the president came in the Senate National Security Powers Act and House National Security Reforms and Accountability Act, which adopted an updated version of the Biden approach in its arms sales-focused portion. Dubbed the “flip the script” approach to arms sales, the bill would restore congressional authority for controversial sales according to item and recipient, while allowing less-risky sales to continue. The sticking point for the bill, if it is reintroduced, will be Israel. The National Security Powers Act used a list of countries already in the Arms Export Control Act to determine which countries would be eligible for sales without express congressional authorization. That list includes Israel, and so the National Security Powers Act, as last introduced, would allow sales to Israel without express congressional approval. In light of the Israeli government’s pattern of atrocities, it should not receive this privilege if the bill is reintroduced.

Ban Bombs Better

An arms export framework has to answer four questions:

• What can the president do alone, without telling Congress?
• What does the president have to tell Congress? 
• What does the president have to ask for specific authority to do?
• What does Congress prohibit the president from doing? 

These days, most debates focus on implementation of laws pertaining to the final question, like the Leahy Law and Section 620I of the Foreign Assistance Act. But when it comes to the balance between Congress’s power and the president’s, the first and second questions are most important.

Congress has debated these questions before, most intensely in the 1930s as it reckoned with the role of the arms industry in World War I and again in the 1970s as it reasserted congressional authorities after Watergate and the American wars in southeast Asia. 

Since those 1970s-era reforms, congressional authority has slowly eroded. The first warning sign came in INS v. Chadha. Today, the erosion is only accelerating. As a workaround to Chadha, the process of informally notifying congressional committees of major arms sales before an official notification has long allowed committee leadership to hold up major arms sales to ask questions or request modifications. But the Trump administration has repeatedly overridden these holds. Meanwhile, the White House and congressional allies are pushing to require notification for fewer arms sales and reduce the opportunities that legislators have to question proposed sales. For decades, the Arms Export Control Act’s joint resolution of disapproval mechanism has been described as a deterrent to harmful arms sales, despite the practical impossibility of actually enacting such a resolution. Soon, that deterrent effect will be null. For progressives to meet the moment, they need to change the terms of the debate. 

With little prospect of enacting meaningful legislation in this Congress, legislators and advocates should envision a different system to promote accountability, human rights, and international law and develop a consensus around that vision. Congress should be working towards a reclamation of their constitutional authority and an end to the system that allows the president to sell weapons to war criminals and human rights abusers with impunity.