I’m not asking that question rhetorically. I don’t know the answer and would be eager to hear from procedural experts about Susan Ferrechio’s read on the rule here, even though it’s a near-cinch that the push from Congress to stop Trump will collapse before it reaches the stage she describes.
To refresh your memory: Trump declared a national emergency at the border last week that empowers him to seize Pentagon money to start building the border wall. Under the law, Congress can cancel an emergency declaration by passing a joint resolution. A joint resolution needs only a simple majority to make it through the Senate — no filibusters allowed! — and if it passes the House then it must come to a vote in the upper chamber. McConnell can’t block it like he can most other legislation. All of which means we’re about to see the Democratic House pass a resolution rebuking Trump and then, due to opposition to the emergency decree among some Senate Republicans, the Senate’s going to pass it too. Congress, which seems unable to agree on anything else of import, really is about to pull it together and try to shut down the president on his declaration of emergency.
But that’s half the battle. Trump will veto the joint resolution, forcing the House and Senate to try to muster two-thirds majorities in each chamber to override that veto and force an end to the state of emergency. Ferrechio’s question is simple: Although McConnell has no choice but to hold a Senate vote on the original joint resolution, does he have a choice on whether to hold that second vote to override Trump’s veto? As best she can tell, the answer’s yes. He can block the override attempt even though he couldn’t block a vote on the underlying legislation.
“Nothing in the Constitution requires that either chamber vote directly on the question of repassing a vetoed bill,” the Congressional Research Service reported in 2015, referring to a vote to override a veto. “If either chamber fails to vote on the question, then the measure dies.”…
A McConnell spokesperson declined to speculate on how McConnell might act at any point in the process.
Let’s say that’s true. How would it change the strategic calculus for Senate Republicans and for McConnell himself? My guess is that if Senate R’s know up front that McConnell will roadblock any attempt to override Trump’s veto then they’ll be more likely to vote against Trump on the initial vote on the joint resolution. They’ll reason that MAGA Nation won’t fault them for trying to stop Trump from building the wall so long as they don’t actually succeed. If they want to vote no on the emergency decree ineffectually, to virtue-signal to swing voters back home, fine. Trump can veto that, then McConnell can block the override, and construction on the wall will proceed.
The tricky part, though, is making sure that the vote on the joint resolution doesn’t attract so many Republican voters that it actually clears the bar for the two-thirds majority. If that happened, it would be big news and would suddenly put a lot of pressure on McConnell to hold a second vote to override Trump’s veto. After all, if the joint resolution passes with, say, 55 votes, Cocaine Mitch could cite that fact as a reason not to bother with the override vote. “We’re nowhere near the 67 votes needed to override. It’d be a waste of time to vote.” But if they get 67 votes on the joint resolution? What’s his excuse for not holding the override vote then?
I think he and the caucus would huddle before the vote on the joint resolution and try to find an agreeable number of Republican defectors, somewhere well short of 67, so that he’s not under pressure to hold a second vote after the veto. If, say, 13 Republicans told him that they really want to oppose Trump on the emergency decree, that might be acceptable to him. Then those 13 could register their dissent formally in the first vote, bringing the number of opponents to the emergency up to 60 (assuming all Democrats vote no as well). “Sixty just isn’t close enough to two-thirds to justify an override vote,” McConnell would say afterward. And that would be that.
On the other hand, if McConnell knows that an override vote is destined to fail then … why not hold it? He’s facing his own election next year in Kentucky. Why take the onus for protecting Trump onto himself if he knows for a fact that there isn’t a two-thirds majority in the Senate to cancel the emergency declaration? He could hold the vote, watch it fail, then shrug and forget the whole thing. He has no incentive to block the vote unless it might actually succeed, and if it might actually succeed then there’ll be lots of pressure on him not to block it.
So under what circumstances does he actually step in and protect Trump here? Hard to say.
Doesn’t matter, either. It’s almost impossible to imagine to imagine a scenario in which 20 Republicans muster the nerve to join in a successful override of Trump’s veto. Which Senate GOPer would choose to piss off Trump’s base for all eternity by agreeing to become the 67th vote to stop him from building the farking border wall? It’s inconceivable. It means an almost guaranteed primary challenge. I can picture something like 64 or 65 override votes materializing, but once you get close to 67 the undecideds will get a lot more nervous about joining the majority. Does anyone think Ted Cruz or Tom Cotton, both of whom are eyeing 2024, would declare war on Republican populists by becoming the 67th vote to nuke Trump’s wall authority? C’mon.
And besides: To even reach the point where we’re talking Senate overrides, Pelosi would need to somehow muster a two-thirds majority in the House. That would require no fewer than 53 Republican votes at a moment when there aren’t a ton of purple-district R’s left. Where is she getting those 53 from? Nate Silver and Perry Bacon framed the dilemma for congressional Republicans this way in a piece today: “[T]he president, by issuing this declaration, has forced his party into what amounts to a loyalty test — will they stand with him, even if it means abandoning some of their long-held concerns about executive overreach?” That’s right, and that’s exactly how Trump’s base will see it. Why would any Republican choose to become the decisive vote on a “loyalty test”?
Exit quotation from Stephen Miller:
— FoxNewsSunday (@FoxNewsSunday) February 17, 2019