The Power of the Presidential Veto

A ndrew Jackson was bestowed with many nicknames: “Old Hickory,” “The Hero of New Orleans,” and “King Andy,” to name a few. Another that was given to him late in his public career was “Sir Veto.” This nickname invoked one of the constitutional powers of the presidency — the power to block a bill passed by Congress from becoming law. Though the exercise does fit the hard-headed character of the man (veto, after all, is Latin for “I forbid”), Jackson was hardly its most prolific user. While Jackson just made it into the double digits on this score, Grover Cleveland exercised the power more than 400 times in his first term. Franklin Roosevelt vetoed more than 600 bills during his extended tenure in office.

Nor was Jackson the first to veto a bill. Today, April 5, marks the 230th anniversary of the first presidential veto, when President George Washington used the power on the Apportionment Act of 1792, a bill that presented a new division of House seats within the states.

We associate the veto power with the president because he has always possessed it in our constitutional system. On this anniversary, however, we should reconsider why. What purposes does it serve in our constitutional republic?

In one sense, the presidential veto power makes little sense. Our constitution constructed a government distinguished by the type of power vested in each branch. Congress received the legislative, the presidency the executive, and the courts the judicial power. We should be able to categorize the actions each branch takes, then, as falling within its vested authority.

What kind of power is the veto? In answering this question, we must pair it with the power to sign bills, since the president can choose to do one or the other with each piece of legislation that crosses his desk. Signing a bill forms a necessary part of the process by which a bill becomes a law. Exercising the veto right is a part of the same process, even though it results in stopping a bill from achieving that final status. Thus, the power to sign or veto legislation is inherently legislative. The president wields legislative power every time he does either.

Why give the president a power naturally lodged with Congress? The Framers had more than one reason. First, the veto power gave the executive branch a means of self-defense. While the Framers established three distinct branches, they held no illusions that the three stood on equal ground. The powers vested in them were not equal. In Federalist No. 48, Madison wrote that “the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Congress, the branch wielding legislative power, would naturally dominate the system. The Framers knew this point from experience. The state constitutions of the 1770s and 1780s — though featuring a separation of powers, too — nearly all ended in de facto legislative supremacy. Reason could explain this outcome. In a regime based on the rule of law, the lawmaker had an advantage over those officers charged with carrying out the law. Moreover, in a republic, the legislative branch’s bicameral structure made it look more like the people in action than a solitary executive or a robed judiciary. In so looking, the legislative branch more naturally garnered the sympathy of the people in squabbles with other branches.

The Framers did not want the legislature to be so dominant that it would effectively control the other branches. Drawing from the French thinker Montesquieu, they believed that regardless of the type of government, such control ultimately resulted in tyranny. For if the same persons making laws controlled how they were enforced and interpreted, then those persons easily could manipulate the law to help friends and harm enemies. The rule of law would descend into the rule of despotic man.

The veto power was one way of stopping this consolidation from occurring. It gave a piece of the legislative power to the executive. It did so, not to violate the separation of powers but to maintain it in practice. Indeed, by the veto, the president could guard his own powers against legislative usurpation. The Constitution allowed for a congressional override, assuming two-thirds of both chambers concurred. The capacity to override acknowledged a president could grossly err in his exercise of the veto. The high standard to override demanded a broad legislative consensus, well beyond normal partisanship.

The veto power began with executive self-defense. But it did not end there. The president’s role, by itself, offered sufficient reason to give the office part of the legislative process. The Constitution gives the president the executive power, the essence of which involves the duty to “take care that the Laws be faithfully executed.” Congress has certain goals in mind when making a law. It has a certain idea about how the law will operate, in pursuit of that goal. It sees how laws actually operate in the real world. This real-world knowledge can prove valuable for amending old and creating new legislation. The president possesses some power in this area through another constitutional provision — specifically, Article 2, Section 3 — wherein he can both inform Congress regarding the state of the union and make legislative recommendations to that body. However, the veto power adds some teeth, some negotiating leverage to the president’s participation.

Finally, the veto power has come to serve a function within our partisan politics. Political parties, of course, vie for control of our three branches of government. As the chief executive, the president vetoes those bills he finds unconstitutional. But he also nixes legislation he thinks bad policy. He does so as part of a political coalition — a party — pursuing what it thinks for the good of the country. Far from distorting the presidential veto power, this authority recognizes his representative capacity. Only the president is the object of choice for the entire American people in an election. Members of Congress have to face only the voters of their own state or district. This dynamic gives the president a special place to argue for or against the merits of a bill. The president’s veto threat allows one more point of refinement, one more point of deliberation to make a bill into a better law.

Thus, we can see the great and varied goods the presidential veto provides for our constitutional system. If anything, presidents should exercise the veto power more than they currently do. Too many presidents now fail to act when they think a bill is unconstitutional, and simply pass the buck to the judiciary. The lower number of recent vetoes also betrays a too-cozy relationship between Congress and the White House, in which partisan labels replace pride in the constitutional branch entirely. The power’s reinvigoration could rightly form part of a broader constitutional restoration — one for which we are long overdue.