US aid to Ukraine has been a hot topic this month. With the supplemental budget blocked by the Republicans controlling Congress, we hear increasingly frustrated calls in some quarters for President Joe Biden to take extraordinary measures to provide Ukraine with the arms it so badly needs.

Even on Kyiv Post’s own pages, editorials like the Jan 13 provocatively-titled column by Robert Zubrin, accuse Biden of cowardice, even desertion - strong words evoking strong emotions: anger, despair, betrayal. Emotions I too shared, based on the same misunderstanding.

Emotions like those can easily fog our minds. In focusing narrowly on Biden, we miss the peculiarities of American law which bind even the President of the United States. In doing so we miss those who should answer for their intransigence.

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“Surely there must be an exception of some sort?” goes the assumption.

“What about Lend-Lease? What about the US as ‘The Arsenal of Democracy’?”

As the name suggests, Lend-Lease isn’t aid, it is debt-financed purchase, and whether today or in 1940, those purchases aren’t unilateral. The White House does not send aid under Lend-Lease, it approves requests by foreign nations for program aid.

With Ukraine’s finances under enormous strain, the risk to Ukraine’s treasury was too great and Lend-Lease [must be] treated as a last resort. Which is why Ukraine chose not to immediately use it in 2022. The option was not taken away by Biden, but when the Republican-controlled Congress refused to renew Lend-Lease in October 2023, the start of the US fiscal year begins on Oct. 1.

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“What about ammunition for Israel? Hundreds of Bradley IFVs for Morocco? Why none for Ukraine when, [as argued in a Jan 14 article] they have used them so well?”

Again, these were sales, which Biden’s administration simply approved as permitted under the Arms Export Control Act. Whatever our personal opinion of those sales, neither Israel nor Morocco received so much as a grain of gunpowder without paying in full.

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“Well, what about the frozen Russian $300 billion?”

The US holds less than a third of it, and the funds can only be released with functionally unanimous consent. A recent excellent article in Kyiv Post addressed many [of the relevant] details.

“So, what about the vast fields of elderly materiel scheduled to be scrapped? If Congress won’t authorize refurbishment, why not write the stocks off, send it as-is, and let the ever-resourceful Ukrainians do what they can with it?”

When the US has sent aid, it is the US which has been responsible for control, refurbishment, and shipping to Eastern Europe. Even if the handover of expiring equipment and munitions were legally possible, all of the supporting actions to actually provide it to Ukraine require funding, even if only on paper, and would require non-US logistical capacity since no US funding is available. No other country possesses anything like USTRANSCOM’s massive air and sealift resources, especially not within the US itself.

This is where we bump into especially idiosyncratic American law. What a president cannot do under American law is unilaterally shift funds appropriated for one purpose by Congress to a second. The main culprit here is the oddly-titled ‘Impoundment Control Act of 1974’, a product of post-Nixon tumult, which was expressly designed to place Presidential spending firmly under Congressional control. Biden, then a freshman Senator, knows the law well — just as he knows its most famous violation: a little incident from the Reagan era known as “Iran-Contra”.

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Until he was caught, Ronald Reagan famously took the illicit proceeds of secret sales of arms to Iran and, in full circumvention of Congress, funneled them to the Contras of Nicaragua. While Reagan did survive the scandal, he never faced a Supreme Court tilted 6-3 against him as Biden does today. Republicans would find it a gift beyond measure were Biden to try anything similarly underhanded.

As of writing and until Congress passes more aid, the only remaining funds actually appropriated by Congress for Ukraine is the final $3-4 billion in Presidential Drawdown Authority. Given that the concurrent replenishment budget has been exhausted, it’s unclear how much PDA funds can be used, but regardless, those funds must now be withheld for emergencies of last resort until new aid passes.

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“But what about the Houthis? Operation ‘Prosperity Guardian’? The president of the US wields enormous power!”

This is true! The US Constitution, laws, and judicial precedent give the president incredible latitude over deploying American force. Biden could even order direct strikes on Russian targets - something not even Ukraine is requesting!

Unfortunately, this power does not extend to arming foreign entities. It is bitterly ironic that the only way for Joe Biden to deliver bombs to Ukrainians without Congressional approval would be to drop them on Ukraine.

Whether we find it confusing or absurd, Biden is thankfully not dictator-for-life, [and must] acti within the laws he is bound by. But this means there is no magic wand.

Nor should we be distracted by cheap tricks or fast patter. It is the Republicans who can call a vote but refuse to. This is quite literally the role of the Speaker of the House, who despite various “proposals” and “negotiations” both Speakers McCarthy and Johnson have refused all votes. The last time Congress passed any aid for Ukraine, was in 2022 under then-Speaker Nancy Pelosi.

It is the Republicans who gleefully deflect and delay, happy to see Biden blamed for the chaos they bring, with not even five of their number willing to break ranks to pass legislation.

It is the Republicans, beholden to Donald Trump - who has just reiterated his affections for Vladimir Putin - who have chosen to desert the world.

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Matthew Westberg is “a Canadian supporter of Ukraine, who has been forced by history and circumstance to follow the political and legal processes of our massive neighbor.”

The views expressed in this opinion article are the author’s and not necessarily those of Kyiv Post.

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