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Congress just took a rare bipartisan act, and the White House isn't happy about it

Speaker of the House Rep. Paul Ryan (R-WI), Secretary of Veterans Affairs Robert McDonald, Senate Majority Leader Mitch McConnell (R-KY), Senate Minority Leader Harry Reid (D-NV), House Minority Leader Nancy Pelosi (D-CA), and Acting Secretary of Army Patrick Murphy.
Speaker of the House Rep. Paul Ryan (R-WI), Secretary of Veterans Affairs Robert McDonald, Senate Majority Leader Mitch McConnell (R-KY), Senate Minority Leader Harry Reid (D-NV), House Minority Leader Nancy Pelosi (D-CA), and Acting Secretary of Army Patrick Murphy.
Alex Wong/Getty Images

In a rare display of bipartisan unity, Congress overrode a presidential veto of the Justice Against Sponsors of Terrorism Act (S. 2040). There have only been 106 vetoes in the past 26 years. Veto overrides are even more rare — there have only been eight of those. Veto overrides are like black swans, so what explains this uncommon event not seen in more than eight years?

In a word: politics. But first, some context.

What is JASTA?

The bill narrows the definition of legal immunity that is typically granted to foreign agents in the US. If enacted, the law would allow US citizens to sue in federal court a foreign state, or its representatives or employees, if the citizen has been the victim of a terrorist act. Supporters of the bill contend that the law will allow 9/11 victims and their families to sue Saudi Arabia for the role that government played in the 9/11 attacks.

Setting aside the question of legally proving this assertion, opponents have argued that enacting this law would put US military and employees working abroad at risk of being sued by citizens of the country where they reside.

For example, if the US passes a law that allows 9/11 victims to use US courts to sue Saudi Arabia for 9/11 (despite the 9/11 Commission refuting this relationship), the Obama administration expects that other countries might pass similar laws. Then we might see Iraqis, for example, using Iraqi courts to sue US military or other personnel for acts of violence in their country. The Obama administration has argued that this is a slippery slope that could harm our national interests.

Supporters of the bill see it as a way to support 9/11 victims and families, in a way that is nearly costless to the American taxpayer. The original legislation passed on voice votes, meaning there was no measurable opposition in Congress. The veto override in the Senate on Wednesday was 97-1, with Minority Leader Harry Reid casting the lone vote to support the President's position. The House override vote was an overwhelming 348-77.

Why would Democrats rebuff their president?

While it's not unusual for the president and Congress to not get along these days, it is unusual for the president to not get along with the legislative members of his own party. A little political science can help us understand why this happened.

Oversimplifying a bit, Congress passes legislation when a majority of the members of the House and Senate vote to approve a bill. The president can sign or veto that bill. If it is vetoed, the House and Senate have the opportunity to override a veto with a two-thirds majority vote in each chamber.

When do we typically see overrides?

Vetoes are rare because typically when the president is opposed to a bill, the members of his party have the opportunity to kill the bill before it reaches the White House. Veto overrides are even more rare because an override typically means that many members of the president's own party cast a vote to rebuff his preference. It's usually bad politics to rebuff your boss, and the president is the leader of his party.

Veto overrides occur in a few rare scenarios:

  1. When the disagreement over a policy has to do with the powers of government (such as, does the executive branch or the legislative branch have the power to commit troops overseas or conduct foreign policy)
  2. When the president's party is overwhelmingly outnumbered in Congress
  3. When there is an informational imbalance between the president and Congress about the purpose or consequences of a bill
  4. When the president and Congress have opposing political incentives

In the case of the 9/11 bill, scenarios 3 and 4 are in play.

According to the White House, Congress fundamentally misunderstood the consequences of narrowing foreign sovereign immunity. Whether this is a case of information asymmetry, or a disagreement over how a bill will be interpreted and implemented, is unclear.

Generally, the executive branch has the upper hand when it comes to foreign affairs, so the Obama administration has credibility when it comes to offering advice about how it will affect Americans abroad and how the law would be interpreted by the Justice Department. However, one might view this case as Congress trying to assert greater control over foreign policy, as it tries to do from time to time.

But it's unlikely that Congress is making a play to add foreign policy to its portfolio. It can't really manage its current portfolio. More likely, members of Congress have strong political incentives to be responsive to 9/11 families, especially when it has no financial cost. In an election year, members of Congress of any party are reluctant to offend 9/11 families. And since Congress doesn't have much power in foreign affairs anyway, some legislators may discount the law's effects in that arena.

Not only does the president bear greater weight and responsibility in issues of foreign affairs, but President Obama is also not running for reelection. Of course, he is still strongly campaigning for his party to win seats in Congress and hold the White House, so he is not politically inoculated. But his incentives on this issue have diverged from those of even most Democrats in Congress.

In the end, we can explain this unusual legislative event as a rare combination of election pressures, unequal policy information, and inter-branch imbalance of power on issues of foreign affairs. A black swan indeed.