Secretary of State Antony Blinken approved the sale of $147 million worth of 155 mm artillery shells and related components to Israel. The deal is not yet finalized, but if it goes through, it could include more than 57,000 high-explosive rounds, 30,000 M4 propelling charges and other ancillaries like fuzes, primers and charges. 

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The Biden administration did not receive approval from Congress to make this sale. How? By declaring that an emergency exists, waiving the requirement to notify the legislative branch under Section 36(b) of the Arms Export Control Act.

“[The president] says there is an emergency in the world that needs some arms transfers and if we don’t act immediately it will endanger the national interest of America,” retired Rep. Joe Sestak, D-Pa., said. “And that’s what this president has done. It’s rare, but it is not unprecedented.”

If the Biden administration had not declared an emergency, it would have been required to inform Congress that it wants to make the sale and give lawmakers 30 days to respond. Congress would then have the option to pass a resolution saying it does not approve, otherwise, the administration can go through with it. Unless the resolution is passed with a two-thirds majority, it’s toothless because the president can veto it and move forward with the sale anyway. 

“We certainly don’t have a very nimble Congress at the moment,” Sestak said. “So the ability to really be an effective mechanism is pretty low.”

Some Democrats are expressing disapproval of the Biden administration bypassing Congress.

“Just as Congress has a crucial role to play in all matters of war and peace, Congress should have full visibility over the weapons we transfer to any other nation,” Sen. Tim Kaine, D-Va., said. “Unnecessarily bypassing Congress means keeping the American people in the dark. We need a public explanation of the rationale behind this decision — the second such decision this month.”

“The war in Gaza has generated immense controversy and concern in the United States and around the world,” Sen. Peter Welch, D-Vt., said in a statement. “The president should follow the established procedure of submitting his arms sales recommendations to Congress for prior approval.” 

“The administration’s decision to repeatedly short-circuit what is already a quick time frame for congressional review undermines transparency and weakens accountability,” Sen. Chris Van Hollen, D-Md., said in a statement. “The public deserves answers.”

Sestak said over decades, the president’s ability to act unilaterally has grown.

“Every single issue, even selling chips is now a national security issue, that the ability to act quickly has probably understandably moved the president’s ability to do things a bit more unilaterally,” Sestak said.