What Happens Now?

The Senate voted on Thursday to terminate President Trump’s declaration of a national emergency on the southern border using the fast-track process created by the National Emergencies Act of 1976. Senators approved the resolution of termination (H. J. Res. 46) by a vote of 59 to 41. The House passed the measure on February 26 by a vote of 245 to 182. The resolution currently awaits either a presidential signature or veto.

Veto Politics

The president announced immediately after the Senate vote that he will use his power under the Constitution’s Presentment of Resolutions Clause (Article I, section 7, clause 3) to veto H. J. Res. 46.

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.”

-Presentment of Resolutions Clause (Article I, section 7, clause 3)

If the president vetoes the resolution, it will be returned to the House pursuant to the process stipulated in the Constitution’s Presentment Clause (Article I, section 7, clause 2).

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”

-Presentment Clause (Article I, section 7, clause 2)

A two-thirds majority is needed to override the president’s veto. If it does not clear that threshold in the House, the Senate does not have to vote to override. However, if two-thirds of the House (288) and the Senate (67) vote to override the president’s veto, H. J. Res. 46 becomes law as specified in the Presentment Clause.

“If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.” 

-Presentment Clause (Article I, section 7, clause 2) 

Congress is not currently expected to override the president’s veto.

Groundhog Day?

Section 202(b) of the National Emergencies Act gives any senator the power to force his or her colleagues to vote again to terminate the president’s emergency declaration every six months.

“Not later than six months after a national emergency is declared, and not later than the end of each six-month period there­ after that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.”

There are two ways that Congress can produce a different outcome. Its members can persuade more of their colleagues to join them in voting to override the president’s veto. Alternatively, they can add language to the resolution that makes it more likely that the president will sign it.

Until one or the other happens, the situation is unlikely to change.