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February 1974 | Volume 25, Issue 2
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.
Finally it should be noted that the extension of the veto power beyond its narrowest limits has been a gradual affair. Nearly a dozen Presidents have contributed to its expansion over a hundred eighty-five years, while impoundment, for example, developed rapidly and dramatically in two administrations over thirty-three years. Where one has generated controversy, the other has produced little or none. Indeed, most commentators seem to accept the view of Lord Bryce, a nineteenth-century observer of American life, that the veto power “has worked wonderfully well.”
Herewith some highlights and details:
- • The veto currently exercised by the President of the United States remains unique among the powers granted to elected leaders of national states. Although the presidents of the Third and Fourth French Republics possessed a suspensive veto, it was never used.
- • The monarch of Great Britain ostensibly may exercise a veto by withholding the royal assent ( le roy le veult —“the king approves it”), but no monarch has done so since Queen Anne rejected a Scottish militia bill in March, 1707, using, as is customary, the Old French form la reyne s’avisera (“the queen will consider the matter”). Because the monarch is now expected to sign all bills at the direction of the cabinet and because all important bills are sent into Parliament by the ministers, or endorsed by them, the veto in all probability will never again be used. Were an unacceptable bill to be returned for the monarch’s assent, the cabinet would either call for a new election to test its parliamentary strength or merely resign to make way for a new ministry.
- • When the Constitution was drafted in 1787, the only existing executive veto in the United States—and the model the drafters eventually used—was in Massachusetts. Since then forty-nine states have granted their governors that power. (North Carolina is the exception.)
- • Since 1789 congressmen have introduced nearly 941,000 separate bills and joint resolutions for possible enactment into law. The First Congress considered 144 measures and passed 118. At the present time an average of 22,000 new bills appear in each two-year term of Congress; most of them die quietly—and unmourned—in the labyrinths of congressional committees. Somewhere between 900 and 1,500 will eventually become law.
- • Since the establishment of the government a hundred eighty-five years ago Congress has enacted nearly 86,000 laws. Some 40,500 originated as public bills , generally designed to affect the nation as a whole. Roughly 45,500, or more than half, began as private bills , designed to grant relief to specific individuals or groups named in the bill where the enforcement of other, existing statutes would work a hardship in taxation, immigration restrictions, military pensions, and the like.
- • Thirty Presidents have cast a total of 2,289 vetoes (through November. 1973). This represents about 2.6 per cent of all legislation submitted to the President for approval. A total of 1,315 were regular vetoes ; 974 were pocket vetoes.
- • Congress has overridden only 78 regular vetoes. This accounts for 6 per cent of all regular vetoes cast, or 3.4 per cent of all vetoes. Virtually all overrides were in support of public bills.
- • Roughly 60 per cent of all vetoes have been directed to private bills. Congress has rarely brought such vetoes to a floor vote.
- • Four Presidents (Franklin Roosevelt, Cleveland, Truman, and Elsenhower) together account for 1,650 vetoes, or approximately 72 per cent of all vetoes cast. Thirty of these vetoes were overridden.
- • Andrew Johnson had the most vetoes overridden: 15 of 21 regular vetoes. Harry Truman is next with 12 overrides out of 180 regular vetoes cast.
- • Eleven Presidents were never overridden: Washington, Madison, Monroe, Jackson, Polk, Buchanan, Lincoln, McKinley, Harding, Kennedy, and Lyndon Johnson. Among them they cast a total of 60 regular vetoes.
- • Seven Presidents did not exercise the veto: John Adams, Jefferson, John Quincy Adams, William Henry Harrison, Taylor, Fillmore, and Garfield. None of them apparently was opposed to the power in principle; the occasion for its use simply did not arise.
- • Van Buren exercised the pocket veto only, and just once, against a bill that was technically defective because an officer of the House had failed to sign it.
- • Three Presidents who cast regular vetoes did not exercise the pocket veto: Washington, Monroe, and Pierce.
George Washington was the first President to use the veto. He exercised it twice and was not overridden on either occasion. The first was cast in April, 1792, against a bill reapportioning the House of Representatives in accordance with the census of 1790. Washington argued that the reapportionment was unconstitutional because it provided a greater number of representatives than the Constitution permitted. His second veto came nearly five years later, in February, 1797, when he rejected a proposed reduction of cavalry units in the United States Army on defense grounds (they were needed in the West) and for economic reasons (many among those to be dismissed had served only one third of their enlistment, and because they had each been paid an enlistment bounty, the nation would stand to lose a substantial sum). Four hundred seven bills became law during Washington’s two terms.
James Madison was the second President to use the veto, the first to employ the pocket veto, the first to veto a private bill, and the second of eleven Presidents not to be overridden. He cast 5 regular vetoes and 2 pocket vetoes. A total of 899 laws were enacted during his two administrations. His use of the veto followed Washington’s practice of measuring the constitutionality of the bills presented to him, a curious invasion of the Supreme Court’s recently asserted function of judicial review which characterized most early vetoes and which, for some reason, went unchallenged. Two of Madison’s regular vetoes were directed against private bills in 1811; one of these would have incorporated a church in Virginia (for tax purposes), and the other would have provided federal land for a Baptist church in Mississippi. Both of them, as Madison saw it, violated the First Amendment’s separation of church and state. Madison directed the first pocket veto against a change in the naturalization laws in November, 1812, shortly after Congress adjourned.
Andrew Jackson was only the fourth President to exercise the veto (5 regular and 7 pocket), but he substantially changed the grounds for its use. Although he, too, observed the earlier practice of measuring a bill’s conformity to the Constitution, he proudly boasted that most of the legislation he struck down was repugnant to him for personal and political reasons. Fully half of his vetoes were directed to internal improvements and four to fiscal and banking measures. Although he was never overridden, his vetoes contributed to strained relations between the White House and Congress and generated considerable political turmoil during his eight years in office.
Two of his vetoes have historic interest. The first, cast on May 27, 1830, was an open assault on Henry Clay’s “American System,” a program of federal aid based on regional needs designed to speed the development of the nation’s resources and to establish sectional harmony by, in effect, trading off high tariffs protecting eastern manufacturers for good roads and canals in the agricultural South and West. The Maysville Road Bill, introduced by Clay, was to be a crucial test of the whole concept. Jackson’s veto checked but did not completely stop the movement for national improvements and was hailed by supporters of States’ rights as a significant curb on burgeoning federal power. Jackson argued that the road had local—not general—value and thus lay outside the domain of Congress; if such projects were to have any basis in law, then an amendment to the Constitution was required. Although Jackson himself con- tinued to authorize funds for construction and spent an average $1.3 million annually in this area, his veto generally dampened congressional enthusiasm for projects not clearly national in scope.
Jackson’s second important veto was directed against the Bank of the United States on July 10, 1832. An extraordinarily complex problem involving States’-rights philosophy, a variety of regional questions, economic theories, and political aspirations, the “bank question” became the central issue in the Presidential campaign of 1832; historically it has become the most puzzling act in Jackson’s career and has led historians to a variety of interpretations about the nature of Jacksonian Democracy and of Jackson himself. Probably no other veto has been more thoroughly studied or had more immediate and long-range effects on the nation than this. (The only close competitors are Andrew Johnson’s vetoes during Reconstruction.) While the reasons for Jackson’s veto are clear enough in his message to Congress—he indicts monopoly and special privilege—their meaning and Jackson’s motives remain a source of endless debate.
The first congressional override of a veto came on March 3, 1845, after John Tyler exercised the last of his 6 regular vetoes. Earlier Tyler had ordered the Navy Department to let contracts for the building of two revenue cutters. As the contractors with the winning bids set to work procuring materials, but before actual construction of the vessels had begun, Congress passed a bill prohibiting the purchase of any additional cutters without its consent. As Tyler read the bill, the wording seemed to suggest that the contracts he had let were now void, and he took this to be a violation of the Constitution’s clause in protection of contract. Congress did not agree and overrode his veto by a vote of 41-1 in the Senate and 127-30 in the House. The ships were not built.
By the end of the Civil War, when Andrew Johnson assumed the Presidency, the White House and Congress had achieved a compatible relationship in regard to the veto power. There had been a total of 57 vetoes, exercised by ten of sixteen Presidents, and 6 overrides. In all some 11,000 laws had been enacted. Except for the national uproar that greeted Jackson’s vetoes of the Maysville Road Bill and the rechartering of the Bank, most vetoes had been quietly cast, easily sustained, and, outside of Congress, generally ignored.
Once Johnson was in the White House, however, all of that changed, and the President and Congress became bitter antagonists. The constitutional prize at stake was the control of Reconstruction, but this alone does not explain the warlike quality of the power struggle that ensued. Certainly the national mood of disillusionment in the aftermath of the bloodiest war the nation has ever fought contributed to the bitterness, as did the reluctance of the South to admit ideological defeat. The assassination of Lincoln and the circumstances of Johnson’s succession played a part, and Johnson’s own personality and habits were factors, particularly when compared with those of Jackson, the only earlier President to take on Congress in a public duel with the veto and the override as weapons. Where Jackson could fight and win because he had a majority of the population backing his stand, Johnson from the outset lacked broad popular support.
He vetoed a total of 29 bills, nearly half of which were major Reconstruction measures. In the end 15 of his 21 regular vetoes were overridden, giving him the dubious distinction of having more overrides than any other President in history. More important, the net result was that Reconstruction passed from executive to congressional control.
Among the vetoes overridden were the Civil Rights Act of 1866, which conferred citizenship upon the blacks (later ruled unconstitutional in 1883); the New Freedmen’s Bureau Bill, which gave the bureau, already empowered to care for the freed slaves, certain judicial powers; the First Reconstruction Act of 1867, which divided the South into five military districts and established the conditions by which the Southern states would be restored to the Union; the Tenure of Office Act of 1867, which limited the President’s removal powers and the violation of which by Johnson subsequently led to his impeachment; and the Judiciary Act of 1869, which fixed the number of Supreme Court justices at nine.
Rutherford B. Hayes cast his first of 12 regular vetoes on February 28, 1878, and was promptly overridden. At issue was the Bland-Allison Bill, which required the Treasury to purchase a minimum of $2 million in silver each month. The bill had been introduced by free-silver advocates in the House and, though weakened in the Senate, played a key role in keeping the silver issue alive until the McKinley-Bryan campaign of 1896.
After this initial loss Hayes was not again overridden. In 1879 he established a precedent with his veto of an army appropriations bill, and later a general appropriations bill, on the ground that Congress had in both instances tacked on general legislation riders unconnected to the original provisions or intent of the bills. The riders would have repealed the Force Acts of 1865 and 1874, which gave the President authority to use federal troops to supervise congressional elections where fraud or intimidation of voters was feared. The riders’ appearance in the appropriations bills seemed an unwarranted interference with the discretionary powers of the President and a challenge to the separation of executive and legislative authority. Hayes informed Congress that he had no intention of using troops during elections but that Congress had no right to limit the President’s deployment of military forces where “such employment is necessary to enforce the Constitution and laws of the United States.” In any case, if Congress wished to consider the issue, it should do so openly in a general legislative bill and not under cover of a rider. Congress sustained both vetoes but attempted similar tactics in three other appropriation measures. Hayes vetoed all three and was not overridden.
When Grover Cleveland began his first administration, fourteen Presidents had cast 205 vetoes (118 regular, 87 pocket). In the next four years Cleveland easily doubled the total of all other Presidents with 414 vetoes (304 regular, 110 pocket). He was overridden only twice. He struck down 343 private relief and pension bills; the remainder were mostly construction projects of a limited kind: a bridge over the Arkansas River, for example, and a public road leading to a national cemetery in Corinth, Mississippi. In his second term, beginning in 1893, he added 170 vetoes (43 regular, 127 pocket) and was overridden five times. Ninety-eight of his vetoes in the second term were directed to private relief and pension bills. On one particularly busy day—March 4, 1895—he cast 57 pocket vetoes. Except for Franklin Roosevelt, Cleveland vetoed more bills than any other President, a grand total of 584 in eight years.
Franklin Roosevelt took to the veto power with a zest matched only by Cleveland. Old New Dealers tell the story that Roosevelt occasionally asked his aides for something he could veto in order to remind Congress not to get “uppity.” True or not, the story underscores Roosevelt’s record as “the vetoingest President” ever. By the time of his death in 1945 he had cast a total of 635 vetoes (372 regular, 263 pocket) and had been overridden only nine times.
Roosevelt’s vetoes ranged across public and private bills, pork-barrel construction projects, and what he took to be infringements of Presidential authority and, in a sense, reflect by themselves the history of the veto power. But one veto, in particular, is memorable both because it established a precedent and because the events surrounding it may have denied the Presidency to Alben W. Barkley, the majority leader of the Senate.
Early in 1944 Roosevelt had asked Congress for $10 billion in additional tax revenues to combat wartime inflation and hold down the national debt. When Congress passed a bill providing less than one billion, the famous Roosevelt temper flared, and he sent the bill back with a stinging veto message on February 22. This was the first time a revenue measure had been killed by a President, which by itself would have been a shock, but Roosevelt’s words were more shocking still. “The bill,” he wrote, “is replete with provisions that not only afford indefensible special privileges to favored groups, but set dangerous precedents.” It is, he added, “a tax relief bill providing relief not for the needy but for the greedy.”
Congress was stunned by the rebuke and then deeply angered. Barkley, in an impassioned speech that left him in tears, declared that the integrity of Congress had been wrongfully impugned, its members insulted, and the leadership demeaned. Immediately he announced his resignation as majority leader and withdrew. The next morning Roosevelt sent a telegram—instantly famous as the “Dear Alben” wire—in which he said he had no intention of attacking either the integrity of Congress or of its leadership. “You and I may differ …,” he said, “but that does not mean we question one another’s good faith.” He urged Barkley to return to the Senate and seek his leadership post. Barkley did and was unanimously re-elected majority leader. On February 25 Congress overrode Roosevelt’s veto. Later in the year, when the time came for Roosevelt to choose a running mate for the coming election, he ignored Barkley, who until February had been the front-runner, and gave the nod to Senator Harry Truman of Missouri.
Truman stands third on the list of Presidents who have cast the most vetoes. In seven years he exercised the veto 250 times (180 regular, 70 pocket). He was overridden twelve times, ranking him after Andrew Johnson as the President most often overridden. Among the major pieces of legislation passed over his veto were the TaftHartley Act in 1947, the McCarran-Wood Internal Security Act of 1950, which required the registration of Communist Party members, and the McCarran-Walter Immigration and Naturalization Act of 1952, which established screening measures to keep out “subversive” aliens and empowered the Attorney General to deport naturalized Communists.
Lyndon Johnson, who vetoed 30 bills (16 regular vetoes, 14 pocket) may be the first President to have withdrawn a veto after he had earlier cast it. On August 24, 1964, he pocket-vetoed a bill that authorized the United States Court of Claims to hear a specifically identified suit against the government. Congress was in recess for the Democratic National Convention, and legally the bill was dead. Nonetheless two days later, and after Johnson had already drafted a message of disapproval to send to Congress, he changed his mind. He decided to sign the bill and leave the question of its constitutionality to the federal courts.
Richard Nixon cast 39 vetoes through November, 1973 (22 regular, 17 pocket). He has been overridden five times. Like the majority of Presidents since Jackson —Lincoln is the one notable exception —he sees the veto as a weapon to shape public policy in accordance with his own political ideology. Lincoln, by contrast, shared Washington’s view that the veto was a constitutional check and not an instrument of personal judgment. Virtually all Mr. Nixon’s vetoes have been directed to spending measures and particularly to social programs of which he disapproves. Early in March, 1973, for example, he pledged that he would veto fifteen funding bills then before Congress and to date has vetoed four of them. The bills, said his chief aide, John Ehrlichman, were a “nine billion dollar dagger aimed at the heart of the American tax-payer.” Were any of the bills to pass by override, Ehrlichman added, the President would impound the funds. This last statement is in line with the one significant addition Nixon has made to the veto power. Where earlier Presidents have accepted the override as binding, Nixon has thus far shown no disposition to do so. In the most controversial affair to develop to date he vetoed a water-pollution bill in October, 1972, but within hours the House overrode by a vote of 366-11 and the Senate by 74-0. Citing the “staggering costs” of the $24.6-billion measure over the next three years as justification, Nixon ignored the override and impounded the funds, which are currently the subject of court action.
Similarly, when Congress threatened a bill to cut off funding for the air war in Cambodia in the summer of 1973, Mr. Nixon announced that he would not pass the measure and would seek to get around it if he were overridden. A constitutional clash was avoided when the House sustained his veto and Nixon approved a compromise bill on July 1. Whether there will be other confrontations between Mr. Nixon and Congress on the veto power remains to be seen.