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What Will Happen After the Senate Votes on the Emergency Declaration

Don’t expect enough votes to override Trump’s likely veto.
by Jim Swift
March 11, 2019
What Will Happen After the Senate Votes on the Emergency Declaration
Senate Majority Leader Mitch McConnell. (Photo by Chip Somodevilla/Getty Images)

The Senate is expected to vote Tuesday on a House-passed joint resolution to terminate President Trump’s declared national emergency on the southern border. [Editor’s note: The vote has been scheduled for Thursday.] It’s not a vote that Senate Majority Leader Mitch McConnell wants to have, mind you. It’s one that he must have within 18 days of passage in the House, which occurred last month in a 245-182 vote. (Only 13 Republican House members voted for the resolution.)

Republicans control the Senate 53-47, and the baseline assumption is that all 47 Democrats vote for it, meaning four Republicans need to vote with them to pass the measure, since a tie would result in Vice President Pence casting a vote against terminating.

It appears that the votes are there to pass the resolution: Senators Lisa Murkowski, Susan Collins, Thom Tillis, and Rand Paul have signaled their support. That leaves the other 49 remaining Republicans as question marks. After years of complaining about executive overreach on the topic of immigration by President Obama, what will they do? Many of those same senators have even gone on the record to say that Trump’s move here will set a bad precedent, but will their votes match their words?

Time for a little #GameTheory. It’s Tuesday night and the votes are cast, and the Senate votes 50-something to 40-something to terminate the emergency. It goes to Trump’s desk, and he vetoes the first bill of his presidency before sending out a puerile tweet or 20.

The House might then try to override the veto, but Democrats will need to find 42 votes to get to the two-thirds threshold. That seems unlikely. While three Democrats (and two Republicans) missed the first vote on the resolution, supporters must find 39 Republicans to switch their votes.

So, the override fails. It ends there, right?

Potentially not! As Politico’s Burgess Everett reports, the Democrats can force a vote to overturn the national emergency every six months: so three more times before the 2020 election.

Time is a fickle thing in the Trump era. News cycles are so intense as to make stories that happened last week feel like they were months ago; meanwhile, other stories can linger and fester endlessly. And things that were once advantageous to the president can go awry, and vice versa.

That creates a complicated calculus if you’re on the ballot in 2020. Perhaps why Tillis* and Collins are voting against the emergency on principle. Principle is always easier. (*Tillis changed his mind the day of the vote.)

But if like Cory Gardner, Martha McSally, Dan Sullivan, John Cornyn, Jim Inhofe, Ben Sasse, Mike Enzi, Mike Rounds, Joni Ernst, Jim Risch, Steve Daines, Lindsey Graham, David Perdue, Cindy Hyde-Smith, Tom Cotton, Bill Cassidy, Shelly Moore Capito, and Mitch McConnell, you’re on the ballot in 2020, what to do? A “no” vote now sort of locks you into a “no” vote forever, lest there be any more deadly self-own in politics than the dreaded flip flop. How will the political winds be blowing in six, 12, or 18 months?

For others, there are elections in four and six years. The immediacy of these votes and the fealty to Trump issue are less of a concern than being seen as a hypocrite. Marco Rubio and Mike Lee came into the Senate under the Tea Party banner, steeped in constitutionalism and limited government. If Lee or Rubio votes to keep the overreach in place, and explains his vote with fancy Washington lawyer speak, will his constituents care? Will the voters of 2022 believe him to be a man of principle?

Will the Texas voters in 2024 buy Tea Party Ted Cruz’s typical aww-shucks hemming and hawing should he vote to affirm the national emergency? (This is typically Cruz’s default when you know he knows he’s doing the wrong thing.) Should the border wall survive legal scrutiny, how will Texans feel about eminent domain for the wall in 2024? The wall is popular with Texas Republicans, but acquiring it through government overreach is likely less so.

In the Nothing to Lose Caucus, we have Pat Roberts (Kansas) and Lamar Alexander (Tennessee), who are retiring. Since it’s unlikely we’re going to get to a point where the Senate could possibly face a vote with a chance to override a veto, either could vote the right way here with no real consequences.

A few things are pretty clear: An override is probably not happening in the House, and definitely not in the Senate. The national emergency declaration will stand. With Congress having abdicated its responsibility for limiting executive overreach, we’ll have to see if the courts will do so.

Jim Swift

Jim Swift is a senior editor at The Bulwark.