On October 10, Politico’s Andrew Desiderio reported that Senate Foreign Relations Committee Chair Bob Menendez (D‑NJ) said that “the United States must immediately freeze all aspects of our cooperation with Saudi Arabia, including any arms sales and security cooperation beyond what is absolutely necessary to defend U.S. personnel and interests.” Desiderio’s tweet and the corresponding article both claim that “Menendez has veto power over foreign weapons sales.”

While stopping the sales would constitute a bold step in reassessing U.S. relations with Saudi Arabia, Menendez cannot veto such sales under current conditions. Our research examines how Congress can restrain the president’s ability to use weapons sales as a foreign policy tool. Ultimately, the Senate Foreign Relations Committee chair—and Congress as a whole—can stop weapons sales to a specific country through three legislative mechanisms. Unfortunately, they all require presidential tolerance.

Method 1: Section 502B(c) of the Foreign Assistance Act of 1961

Section 502B(c) of the Foreign Assistance Act of 1961 allows the Senate Foreign Relations Committee or House Foreign Affairs Committee to request a report on a specified country. This addition was passed following two House Foreign Affairs subcommittee reports on human rights in 1973 and 1974. After 30 days, no security assistance is delivered until the report is received. Once received, Congress can then pass a joint resolution of disapproval to terminate or restrict security assistance. In the Senate, resolutions requesting a report and post-report are subject to expedited procedures, meaning that a simple majority should be able to move them forward.

The problem is that this is subject to the president’s willingness to let it happen. Current legal precedent does not make this easy. It was tried twice: first in Crockett v. Reagan (1982) and again in Clark v. United States (1985). Both cases were dismissed and never advanced to the Supreme Court. In addition, following Immigration and Naturalization Service v. Chadha (1983), former President George H. W. Bush noted that 502B(c) is likely inconsistent with U.S. law because it would allow a single congressional committee to stop security assistance without being “presented to the President” for review.

More recently, Senator Jeff Merkley, Senator Bob Menendez, and Representative Tom Malinowski have all attempted to employ 502B(c) to no avail. Former President Donald Trump successfully argued that the provision violated separation of powers to stop Menendez and the then chair of the Senate Foreign Relations Committee Bob Corker from using a similar provision of the Global Magnitsky Human Rights Accountability Act. Likely, President Biden could do the same thing if Congress enacted 502B(c) to stop sales to Saudi Arabia.

So, while this provision could in theory allow Menendez to veto a sale to Saudi Arabia, it would likely trigger a lengthy court battle. Legally, it is unclear if it can be used, and any lawsuit would likely not have any resolution for well over a year if it did make it to the Supreme Court. Ultimately, that is why one of the most anti-sales-to-human-rights-abusers chairs of the Senate Foreign Relations Committee, Frank Church, never invoked 502B(c) during his tenure as chair between 1979 and 1981.

Method 2: The Arms Export Control Act of 1976

The Arms Export Control Act gives Congress the ability to stop a sale 30 calendar days before a transfer of equipment valued at $14 million or more. After being notified of a sale, Congress can pass a joint resolution of disapproval. Yet because of two legislative barriers, Congress has never successfully stopped a sale.

First, in the House, there is no mechanism to force the House Foreign Affairs Committee to debate an arms sale, which allows a potential resolution to die in committee. If the House Foreign Affairs Committee does not act to stop a sale, there is nothing Menendez can do because he needs the House to disapprove of the sale to pass a joint resolution.

Second, because Congress needs to pass a resolution disapproving of the president’s sale, the president can veto the resolution. Therefore, even if Congress can unify and both chambers pass a resolution of disapproval to stop a sale, they need to have a veto-proof majority. Trump was able to veto such resolutions to stop sales to Saudi Arabia multiple times.

Absent legislation that “flips the script” to give Congress the power to approve, rather than disapprove, every sale, this presidential veto will override any “veto” that Senator Menendez attempts.

Method 3: The Informal “Hold” Process

In the current arms sales process, the State Department traditionally submits an informal notification to the Senate Foreign Relations Committee and House Foreign Affairs Committee 20–40 days before the formal notification. If any members of Congress have serious problems with the sale, the offices can then place a “hold” on the sale until the issues are resolved.

The problem is that this hold is a courtesy and not written into law. According to Alexandra Stark at the New America Foundation, “the administration has the legal authority to ‘blow’ a hold, meaning they trigger the formal notification process anyway despite Congress’ objections.”

Menendez himself already failed to stop a sale of precision-guided munitions to Saudi Arabia this way in June 2018. He blocked the sale for a few months by placing a hold but was eventually overruled when the Trump administration declared an “emergency exception.”

It is not only optimistic but also inaccurate to say that Senator Menendez has veto authority. Through both legal and informal processes, the executive branch has the final say on arms sales, unless Congress has a veto-proof majority behind a disapproval or passes new legislation that grants it more power over the process.

Nonetheless, Menendez may still succeed in blocking the next round of sales to Riyadh. Biden is growing irritated with Saudi Arabia and may be looking for a way to de-emphasize the American-Saudi security relationship. Allowing Congress to stop the sales helps him avoid political blowback.