Veto

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The veto is without question the most powerful single weapon available to the President under the Constitution. It places him squarely in the center of the lawmaking process, on an equal footing with Congress, and by its very existence guarantees that the separation of powers at the heart oj American government will not, in Hamilton’s phrase, be based on “mere parchment… boundaries.” All things considered, it is a remarkable power for an executive to wield in a republican state.

What is perhaps most remarkable about the veto is that it should exist at all, for the colonial experience with strong executive rule had not been good. But the delegates to the Constitutional Convention in 1787 were determined to create a balanced government in which power would be divided by function and not concentrated in any one branch. They understood that to make such a system work they must equip each component part with, as Hamilton wrote, “a constitutional and effectual power of self defence.” As they ransacked the past for models they reluctantly concluded that for the President this meant the veto, a power that traces back to ancient times, to Sparta and to Rome. Conscious that it was clearly open to abuse, they nonetheless settled on it, again in Hamilton’s words, as “a shield to the executive” to blunt the great powers they had given the Senate and the House and as “a salutary check” on Congress to prevent the “passing of bad laws, through haste, inadvertence, or design.”

What the Founding Fathers created was, in fact, two vetoes, one qualified and the other absolute. As provided for in Section 7, Article 1 of the Constitution (where, by the way, the word “veto” does not appear), the President must approve or disapprove any bill or joint resolution that has passed both houses of Congress. If he signs the bill, it is law. If he does not sign it and Congress remains in session, the bill becomes law without his signature after ten days, Sundays excepted. If, however, the President disapproves the bill, he may exercise the qualified, or regular, veto when Congress is still in session by returning the unsigned bill within the ten-day period to the house where it originated, along with his objections to it. If two thirds of the members of that house present and voting agree to override the veto, the bill then passes to the other house. If two thirds of the members present and voting there also agree to override, the bill becomes a law. Should either house fail to muster a two-thirds vote, the President’s veto is sustained, and the bill is dead.

The pocket veto, by contrast, is absolute. It is exercised only when Congress has gone out of session for longer than ten days or is in formal adjournment at the end of its term. Under such circumstances the President’s veto is final because the rejected bill cannot be returned to Congress for further action, and the veto cannot be overridden.

Despite the Founding Fathers’ fears that this great power would be subject to abuse and a potential source of tyranny, the veto has had a remarkably placid history. Since 1787 it has become nationally accepted as an important—if not essential—part of the system of checks and balances. It has been subjected to few challenges in the courts and then, usually, only to clarify certain technicalities. For example, must a constitutional amendment be submitted to the President for his approval before it is sent on to the states for their approval? The Supreme Court has twice ruled no.

Although Congress has occasionally considered constitutional amendments to weaken or eliminate the veto altogether (most notably in the aftermath of Jackson’s Presidency), the only serious effort at changing the power has come from the Presidents themselves. Every chief executive since Crant has urged the passage of an amendment giving the President an item veto in appropriations bills, a power currently available to the governors of fortythree states. More than a hundred amendments to that effect have been introduced since 1875; all have died in committee. Thus the President must still approve or disapprove a bill in its entirety. He may not eliminate single items he believes to be inflationary or wasteful without rejecting the whole bill. Consequently every President since Franklin Roosevelt has impounded—that is, has refused to spend certain funds Congress has allocated [ see “Impoundment,” A MERICAN H ERITAGE , December, 1973]. Congress, not unexpectedly, has often protested this practice, but its objections have not extended to the veto power itself, for unlike impoundment, which requires a broad reading of the Constitution and existing statutes, the veto authority and its limits are reasonably well defined in the Constitution. As a result, in the great majority of disputed vetoes the sources of controversy are the President’s reasons for exercising the veto, not his generally acknowledged right to do so.

Moreover, as the record suggests, the veto has not been generally abused. In fact, its most powerful effect may well lie in the threat of its use rather than in its actual employment. Congress goes about its work conscious that the President is waiting in the wings to cast judgment on its efforts and—except in the most striking cases—tailors its compromises before, rather than after, a veto has been exercised, for again, as the record shows, the chances of an override are often slim indeed. The Presidents, in turn, have discovered, with some exceptions, that the impact of the veto is inversely related to the frequency of its use.