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Why Congress’s rebuke of Trump’s emergency declaration matters — despite the president’s veto

A short history of presidential vetoes and Congress’s attempts to override them.

- March 15, 2019

“VETO!” tweeted President Trump, as soon as the Senate voted 59 to 41 to rescind his declaration of a national emergency at the southern border. Indeed, the Senate vote teed up the first veto of the Trump administration, since the House had already passed the measure. A second veto might not be far off: The Senate also has voted to end U.S. military involvement in the Saudi-led bombings of Yemen.

Vetoes, unsurprisingly, are linked to divided government. Barack Obama vetoed just two bills in his first two years, when working with Democratic majorities in Congress, but picked up his pen (and phone?) in earnest to veto 10 bills in 2015-2016. George W. Bush didn’t veto a single bill during his first term and only one through 2006. But after Democrats won House and Senate majorities that November, he vetoed 11 bills in 2007 and 2008. Bill Clinton issued all 37 of his vetoes from 1995 through 2000, after Republicans won majorities in both chambers.

Interestingly, Trump will be the first president since Ronald Reagan in 1986 to veto a bill when his party controls one chamber of Congress. This is partly because split control of Congress has been uncommon but also because polarization has risen so sharply, making it much harder to build bipartisan coalitions than it was when Reagan faced far more heterogeneous legislative parties. The conservative Democrats and liberal Republicans still common in the 1980s are endangered species because we are living in a time when ideological overlap between the parties has largely disappeared. The House bills that Obama would have vetoed from 2011 to 2014 were stymied by the Democratic Senate and never got to his desk. That makes this week’s two Senate votes notable.

It is unlikely that Trump’s vetoes will be overridden: It’s hard to muster a two-thirds majority of lawmakers to do anything beyond renaming post offices. Since 1789, fewer than 5 percent of vetoed bills have become law via override. (Franklin Roosevelt had a particularly impressive record in this regard; he vetoed 635 bills over 12 years, and only nine, 1.4 percent of the total, were overridden.) Even a president like Gerald R. Ford, facing huge opposition majorities and unable to press much of a positive agenda, was overridden less than 20 percent of the time.

The fact that Trump can veto the resolution is important. It’s a key reason (as my TMC colleague Sarah Binder noted) that it’s so “hard to claw back power after you give it away.”

To be fair to Congress — not a popular exercise, granted — when lawmakers designed the post-Watergate/Vietnam “resurgence regime” in the 1970s to give Congress a greater role in policymaking, many of the laws they wrote were crafted to avoid the possibility of a veto. The National Emergencies Act (NEA) and the War Powers Resolution, for instance, allowed presidential action to be overturned by a concurrent resolution. That’s a legislative measure passed by both chambers of Congress that does not go to the president’s desk.

The idea was simple: The will of Congress was thought to mean a majority of Congress — not a supermajority. But in 1983, the Supreme Court decided in INS v. Chadha that any legislative action having binding force on presidential behavior had to follow the “presentment clause” of the Constitution: That is, it had to be passed by both chambers and presented for presidential signature or veto. Otherwise, the court held, the measure would violate “the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure.”

Thus, in 1985, Congress amended the NEA to replace the concurrent resolution with a “joint resolution” that does go to the president’s desk.

There is a logic to the court’s conclusion, of course. The same reasoning was used in reverse in 1997 to overturn the Line Item Veto Act that empowered the president rather than Congress. Even so, it upset a long history of carefully negotiated power-sharing between the branches. The ability to overturn presidential action after the fact without passing a new law, as Justice Byron White wrote in his dissent to Chadha, served as an “important, if not indispensable, political invention.” Otherwise, Congress had to choose between writing highly specific laws that would need to guess at future events and handing uncheckable discretion to the executive branch.

Republican senators this week tried to cut a deal with President Trump that would have traded the immediate “emergency” — allowing this one to stand unchecked — for amendments to the NEA that would prevent such an open-ended emergency from being declared again. In a version by Sen. Mike Lee (R-Utah), a president could declare an emergency for only 30 days. Then, instead of having to pass a joint resolution overturning the state of emergency, Congress would have to pass a joint resolution approving its continuation. Otherwise, the emergency would automatically expire.

The president, not surprisingly, was not interested in reining in his authority. But we should hope that Lee’s proposal represented a new commitment by senators to restoring legislative prerogatives rather than just a short-term negotiating gimmick. Indeed, recent discussion of the Chadha case more generally has renewed interest in how Congress can better manage the massive amount of power it has cheerfully delegated to the executive branch over time.

In the meantime, it’s likely that — even vetoed — Congress’s effort to cancel the president’s emergency will bolster the many lawsuits opposing Trump’s action. As Justice White wrote, “The exercise of the veto could be read as a manifestation of legislative intent, which, unless itself contrary to the authorizing statute, serves as the definitive construction of the statute.” The will of Congress does not always have to be legally binding to be politically meaningful.

Editor’s note: In March 2019, this article was updated to reflect President Trump’s Friday afternoon veto of H.J. Res. 46, a resolution to terminate the national emergency declared by the president on February 15, 2019.