President Trump has invoked emergency authority under the Foreign Assistance Act of 1961 to authorize up to $25.9 million in sales of cluster munitions to Korea, overriding longstanding congressional restrictions and marking a clear break with the approach taken by recent administrations.
In a memorandum published Tuesday on the Federal Register’s public-inspection docket, the President delegated authority to the Secretary of State to determine that the sale is “vital to the national security interests of the United States” under section 614(a)(2) of the Act and to proceed notwithstanding other provisions of law under section 614(a)(3).
Congress has for years constrained U.S. transfers of cluster munitions through appropriations riders and policy conditions tied to civilian-harm risks and unexploded ordnance. While previous administrations adjusted internal policy or exercised restraint to remain within those limits, they generally avoided invoking the Foreign Assistance Act’s broad emergency waiver to facilitate sales.
The Biden administration’s 2023 decision to provide cluster munitions to Ukraine, for example, was framed as a narrowly tailored wartime exception rather than a formal override of congressional prohibitions. Earlier administrations similarly relied on policy guidance or declined transfers altogether, even as they maintained U.S. opposition to an outright ban.
By contrast, the new determination explicitly uses statutory emergency authority to bypass those restrictions, signaling that ordinary Foreign Military Sales or Foreign Military Financing authorities were insufficient.
The move underscores a more assertive use of presidential powers in arms-transfer policy, reviving a legal tool that has been rarely employed in the cluster-munitions context since Congress tightened controls more than a decade ago.
Memorandum: [link]
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