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According to the Electoral Count Act on the designation of the US President, the House of Representatives and the Senate may reject votes of some electors when they consider that these votes were not regularly given (3 USC 15). To do this, a concurrent resolution of both Houses is needed.

Can this resolution be vetoed by the outgoing president? I would think so since the presentment clause of the US constitution says that the veto power holds for "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment)" (article I, section 7, clause 3).

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    The veto can only be used if the President's assent is required. If it's not required, then he can't veto.
    – Steve Melnikoff
    Jan 4, 2021 at 12:02
  • In this case, why would the president even want to do that? I would be in his interest to have the votes rejected
    – Zombo
    Jan 4, 2021 at 22:48
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    @StevenPenny I agree that it wouldn't be in his interest. My question was theoretical, not specifically related to the current election.
    – Michel Fioc
    Jan 5, 2021 at 8:04
  • @SteveMelnikoff That was precisely the point of my question: is the President's assent required in this case or not? Not according to an ordinary law, the Electoral Count Act, but according to the supreme law of the US, its Constitution.
    – Michel Fioc
    Jan 5, 2021 at 8:56

3 Answers 3

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No the POTUS can't veto this kind of resolution. The presentment clause applies to bills that become law. It starts with

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:

Some resolutions may be of that kind (thus the "just in case" verbiage that mentions resolutions later in the para), but not every resolution results in a law.

Wikipedia says:

In the United States Congress, a concurrent resolution is a resolution passed by both the House of Representatives and the Senate but is not presented to the President for signature and does not have the force of law. In contrast, joint resolutions and bills are presented to the President and, once signed or approved over a veto, are enacted and have the force of law.

As the Senate page on this notes:

Concurrent resolutions are generally used to make or amend rules that apply to both houses.

Since the concurrent resolution here is on a matter of proceedings of the joint session, it is not presented to the president (just like a resolution on creating a temporary joint committee isn't). You could ask if the president can veto the election results as finally/eventually approved by Congress after all the intermediary steps, but the answer to that is no as well, basically because counting and then announcing the election results is not making a new law, but applying an existing one. And the existing law doesn't give the president any role in the matter, although it does give the VP (Senate president) the role announce the results:

Once the votes have been "ascertained and counted in the manner and according to the rules ... provided" by the Act, "the results ... shall be delivered [by the tellers] to the president of the Senate." The Senate president "shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States."

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    It is obvious that a President should not have the power to decide who will be his successor, so this is a reasonable interpretation. Still, I don't find this fully convincing from a legal point of view... Maybe because the word "law" ("loi" or "droit" in French?) and the expression "having the force of law" are somewhat ambiguous: for instance, does a declaration of war--which must be approved by Congress--have the force of law? (I agree that this would require another question.)
    – Michel Fioc
    Jan 5, 2021 at 8:47
  • A similar problem occurs with international agreements: the procedure for adopting them is not the same whether they are called "treaties" or not, which is quite arbitrary. Anyway, I don't expect to receive a more convincing answer, so I will accept this one.
    – Michel Fioc
    Jan 5, 2021 at 8:48
  • @MichelFioc: yes, saying that officially-announced election results don't have the force of law is weird, but no source actually says that (they say it about the concurrent resolutions--which do many other things--including setting rules for the legislative bodies [in the US]). It may be a good q on law SE to ask if there are indeed different conceptualizations of "force of law" (e.g. in US/British vs continental European traditions). Maybe annualreviews.org/doi/abs/10.1146/… helps, but I didn't read beyond the abstract.
    – Fizz
    Jan 5, 2021 at 14:21
  • @MichelFioc: from a strictly legal US perspective on the meaning of "force of law" Merrill and Watts is probably a better read (although it's long too). Something like that (i.e. the extent to which agencies' rulemaking has the force of law) has actually been involved in the pre-election (and some post-election) disputes last year in the US, albeit at state level. The term "force of law" is certainly used somewhat differently by (European) sociologists than by (US) legal academics.
    – Fizz
    Jan 5, 2021 at 14:41
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To reject votes, a concurrent resolution of both Houses is needed. That is not correct. There is no resolution, concurrent or otherwise, for that purpose.

In fact, the joint meeting for the purpose of counting electoral votes has been held under a concurrent resolution since, at least, 1888. The text of the concurrent resolution for the 2017 joint meeting is provided in my answer to What procedures are in place to stop a U.S. Vice President from ignoring electors?. Were the president allowed to veto the concurrent resolution for the joint meeting, the meeting could be postponed until January 20th or later.

That approval by the president is not required for concurrent resolutions is explained in the emboldened text below.

Article I, Section 7, Clause 3: Passage of Orders, Resolutions, or Votes

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; ...

Presentation of Resolutions

The purpose of clause 3, the Orders, Resolutions, and Votes Clause (ORV Clause), is not readily apparent. For years it was assumed that the Framers inserted the clause to prevent Congress from evading the veto clause by designating as something other than a bill measures intended to take effect as laws. Why a separate clause was needed for this purpose has not been explained. Recent scholarship presents a different possible explanation for the ORV Clause—that it was designed to authorize delegation of lawmaking power to a single House, subject to presentment, veto, and possible two-House veto override. If construed literally, the clause could have bogged down the intermediate stages of the legislative process, and Congress made practical adjustments. At the request of the Senate, the Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted over the years. Briefly, it was shown that the word "necessary" in the clause had come to refer to the necessity for law-making; that is, any "order, resolution, or vote" must be submitted if it is to have the force of law. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the other House or to the President, nor must concurrent resolutions merely expressing the views or "sense" of the Congress.

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  • "[T]he two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified" (3 USC 15). This is maybe not called a concurrent resolution, but an identical vote/decision is clearly required, and its effect is not purely internal to the houses of Congress since it has an impact on the election of the President. Given the external juridical impact, doesn't this concurrent decision qualify as having "the force of law"?
    – Michel Fioc
    Jan 4, 2021 at 18:01
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    @MichelFioc - [D]oesn't this concurrent decision qualify as having "the force of law"? No, the Electoral Count Act (ECA) defines requirements for Congress, etc. It is an application of law, not "law-making".
    – Rick Smith
    Jan 4, 2021 at 18:46
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The Electoral Count Act is just a housekeeping measure around Article II, Section 1 of the constitution:

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President

All that is supposed to happen on Wednesday is for the current VP (who is the president of the Senate) to get the certified votes from each state (remember, the elections are in the individual states - there's no role for the federal government), look at the certificates and count the votes.

The housekeeping role of Congress is to decide if the elector certificates from each state are "regularly given"; that these certificates are the true certificates from the states. Since every state has properly certified its election and there is a single set of electors from each state, Congress should have no role whatsoever.

If, for example, a state presented two "certified" sets of elector votes (say one signed by the Governor and another signed by the Secretary of State), then Congress could step in

That a bunch of members of the House and Senate plan to gum up the works is irrelevant to what should (and will happen) on Wednesday. The damage they do isn't is slowing things down, it's in prolonging the false narrative that Joe Biden did not win the election last November.

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  • My question was a theoretical question on the US constitution, not a political question on the current presidential election: I have no doubt that Trump lost.
    – Michel Fioc
    Jan 5, 2021 at 8:18

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