Made in the U.S.A.: The Constitutional Crisis Behind America’s Arms Export Regime

Volume 114 Issue 2 Date 2025 Made in the U.S.A.: The Constitutional Crisis Behind America’s Arms Export Regime by Arooshe Pahooja Giroti When weapons stamped “ Made in the U.S.A. ” fall from the sky, it defines how ordinary people around the world experience American power. Accordingly, the authority to sell U.S.-made weapons has become one of the strongest tools of foreign policy. When used strategically, arms exports can strengthen our partners, advance national security interests, and even dissuade allies from accumulating nuclear weapons, all without risking American lives. But today, where administrations routinely authorize large-scale weapons sales to address global security challenges, the downsides of the U.S. arms export regime have become impossible to ignore. Selling weapons to foreign countries risks entangling the U.S. in pro tracted conflicts, arming repressive regimes, and fueling human rights abuses. Despite robust “ End-Use ” monitoring programs by the Executive Branch, once weapons leave U.S. soil, the realities of war make them nearly impossible to track, monitor, or rescind, as weapons are frequently retrans ferred to third parties without authorization or are captured by unintended recipients, exposing U.S. technology to reverse-engineering by adversaries. Despite these risks, and more, FY2024 marked the highest year of military sales in U.S. history. The Constitution largely vests Congress with the authority over arms exports through its Article I Foreign Commerce Clause power. Out of recognition that arms exports implicate questions of foreign policy and national security, Congress delegated much of this authority to the Executive Branch, creating an arms export regime that balanced the strengths of both Branches. In practice, however, this shared authority has devolved into a “ tug of war ” for control, with Congressional over- sight steadily eroding since the 1980s. Today, the Executive Branch is generally free to authorize an arms sale unless Congress passes legislation prohibiting or modifying it — a power that Congress has never successfully asserted. This Note argues that the expansion of the U.S. arms export regime demands a fresh examination of the balance of power between the Legislative and Executive Branches. It proposes Congress re-wire the arms export approval process by adopting a “ Joint Resolution of Approval ” (JRA) mechanism, codified in the National Security Powers Act and the National Security Reforms and Accountability Act, which restores demo cratic guardrails over this powerful foreign policy tool while respecting the Executive’s authority to respond decisively to global security threats. This Note’s solution does not seek to dismantle the arms export regime. On the contrary, it aims to bring greater transparency to the approval process and to outline actionable steps Americans can take when demanding account ability from their elected officials, thereby restoring Congressional oversight over the Executive in this “ tug of war. ” Drawing parallels from the 1970s antiwar movement and protests of the 2020s against arms exports, this Note contends that the political moment is ripe for reform. It further cautions that excluding the public from consequential foreign policy decisions altogether erodes trust in po litical leadership and deteriorates the quality of a representative democ racy; even perceived exclusion is dangerous. After all, while the tactics of warfare evolve in parallel to the advancements in technology and geo- politics of the day, one constant has always remained: Americans want a voice in shaping the meaning of U.S. leadership. Thus, Congressional input, regardless of its ultimate effect on a proposed sale, adds a discrete value to the arms export process. Restoring this lever of accountability over at least the riskiest weapons sales would realign the arms export re gime with democratic principles — just as the Constitution demands. Continue reading Made in the U.S.A.: The Constitutional Crisis Behind America’s Arms Export Regime . Giroti_Made-in-the-U.S.A