In the course of recent debates over how to respond to the events in Egypt, many have pointed out that the central legal question is whether Section 508 of the Foreign Assistance Act obligates the President to cancel hundreds of millions in U.S. military aid. Reports have now emerged that the Administration has quietly decided to suspend aid on a temporary basis, but without deciding that a coup has occurred. Putting aside the complex policy questions at stake, I want raise a couple of points on the relationship between this decision and the President’s duty under the Take Care Clause, and suggest that the President has a statutory and constitutional obligation to go one step further and cancel military aid, unless Congress passes a new law overriding the current statute.

Here’s what Section 508 says:

None of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to finance directly any assistance to any country whose duly elected head of government is deposed by military coup or decree: Provided, That assistance may be resumed to such country if the President determines and reports to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office.

A few months ago John Bolton and John Yoo published an op-ed in the Wall Street Journal criticizing the Obama Administration for promoting U.S. ratification of the Arms Trade Treaty, which the UN General Assembly adopted in April. The op-ed argues that the ATT would enable the Administration to circumvent Congress and require new domestic limits on small arms in violation of the Second and Tenth Amendments. I just read the piece and was surprised at how unpersuasive I found it to be, so I decided to write a quick response. I have already explained why the Second Amendment argument isn’t particularly compelling, but a few additional points deserve emphasis:

First, in arguing that Articles 5 and 10 of the treaty would require the United states to adopt new restrictions, Bolton and Yoo overlook existing federal law. They acknowledge that the United States “already has the world’s most serious export controls in place.” What they fail to mention is that current laws also impose permit and registration requirements on arms importers, bar some imports based on country of origin, mandate broker registration, and even authorize criminal penalties against violators. I see nothing in Articles 5 and 10, or in the op-ed, indicating that these laws would be insufficient. That being the case, it’s at least questionable that the United States would have to adopt new import restrictions after ratification. While some might perceive the sufficiency of existing U.S. law as an argument against ratification, that view ignores the positive diplomatic implications of U.S. participation—an arms treaty backed by the world’s largest arms exporter would enjoy much greater legitimacy.

Many have noted that the U.S.-Japan Treaty of Mutual Cooperation and Security could pull the United States into the dispute between Japan and China over the Senkaku / Diaoyu Islands by obligating the United States to come to Japan’s defense in the event of hostilities. Article 5 of the Treaty has the key language and provides that “each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” Because the Senkaku / Diaoyu Islands are “under the administration of Japan,” there is no question that the Treaty applies to them. For that reason, the dispute over the Islands poses a risk for the United States; if any of the nearly daily incursions by Chinese vessels into the surrounding waters turns into an “armed attack,” the United States will have a legal obligation to back Japan. Yet the precise nature of that obligation is unclear. For a couple of reasons, I think it is more limited than many have assumed.

First, Article 5 does not necessarily require the United States to use military force in responding to an armed attack; the obligation is simply to “act to meet” the danger presented. It is not unreasonable to imagine that the United States could satisfy that obligation by pursuing economic or even diplomatic measures, depending on the circumstances. The vagueness of the text leaves Washington with significant discretion to decide whether a particular response will be enough.