... has piqued my curiosity. Obama is threatening his third; the Senate is
daring him to (on the XL Pipeline.) Where did the idea of veto come from? Why?
What was the original intent? Is
it working as it was supposed to?
"Veto" is Latin for "I forbid" and it originated in the Roman Republic
where either of the two consuls holding office in a given year could
block a decision by the other. And any tribune, heads of government departments, could veto an act passed by the Roman
Senate. A republic in name but pretty
centralized at the top.
Our veto, of course, is in the Constitution, Article I, Section 7:
"Every Bill ... before it becomes a Law (shall)
be presented to the President of the
United States: if he approve (sic)
he shall sign it, but if not he shall
return it, with his Objections to that House in which it shall have originated, who shall ... proceed to
reconsider it. If after such
Reconsideration two thirds of that
House shall agree to pass the Bill, it shall be sent, together with the
Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.... If
any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have
been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress
by their Adjournment prevent its Return, in
which Case it shall not be a Law.
So
there it is -- the veto and the pocket veto, but note that the founders did not
use the word. Hamilton called it the
Executive Negative.
How did it come about? From the very start of the Constitutional
Convention, in May of 1787, the idea of an executive negative was proposed. Yet in Colonial times, one of the prime
complaints of the colonists was the right of Royal Governors to veto bills
passed by the colonial legislatures or parliaments. And if the Governors did not veto, the King
could withhold his assent and a bill would not become law. That withholding of assent was the first of
the string of complaints against George the III cataloged in our Declaration
of Independence. So why now, just ten years later, the 180°
turnabout? Well, during the few years under
the Articles of Confederation, those "Founding Fathers" had witnessed
State legislatures steady nibbling away at the prerogatives of the executive,
steadily encroaching on his (no sexism -- they were only hes) his authority and
responsibilities.
Delegate James Madison proposed that the
President and four Supreme Court Justices either assent to or negate a
bill. Delegate Alexander Hamilton,
concerned with separation of powers and wanting a strong executive, proposed an
absolute Presidential aye or nay -- no recourse for Congress. It was Randolph who framed the compromise,
giving Congress the way to override a Presidential rejection through a 2/3rds
majority of both houses.
In the battles for state ratification of this proposed, radical Constitution, among more influential voices were Madison's, Hamilton's and John Jay's,
who together published a series of 83 op-eds in New York newspapers, which collectively
we know as The Federalist Papers. # 73, written by Hamilton, dealt mainly with
what he termed "the qualified negative." He presented two arguments for the veto:
1. That it protected the Executive from incursions
of the legislative branch. It was the "power
of self-defense" said Hamilton. And this last week, just as Hamilton
warned, we've seen an example as the House of Representatives challenged
Obama's executive orders on immigration and restraints on deportations.
2. That it
provides "security against the enaction of improper laws." By
requiring a return with Objections in writing and a reconsideration first by
one house and then, if overridden in the first, by the other, the veto process
provides a cooling off period for reflection.
Prescient Hamilton commented that a "spirit of faction" can
sometimes pervert thoughtful, rational deliberation. By "faction" read party. There were no parties in 1788, and the
founders generally distrusted them. But
a few short years later, those very founders were creating political parties,
the very ones we have today and, as Hamilton predicted, they often warp and pervert
thoughtful problem solving.
In #73, Hamilton forecast that the veto would
be little used and even more rarely overturned.
Was he right? Well, yes and no. Let's
go to the numbers.
Seven of our 44 Presidents did not veto any bills. But the thirty-seven who did averaged a
whopping 69 vetos! The median? Eighteen used it between once and twenty-eight
times; eighteen, more than 30 times. Such
a large difference between the mean of 69 and median of 29 indicates that a few
Presidents really racked up the vetoes.
I guess: 635 times; 584 times, 250 times!
The first veto was exercised by our first
President at the beginning of his
second term. At issue was a bill about
using census data to apportion congressional seats. Washington thought the bill gave an unfair
advantage to the northern states despite his Sect. of State and fellow
Virginian Jefferson's endorsement and in agreement with his Sect. of Treasury New
Yorker Hamilton's opposition. Confusing?
But the point is sectionalism had raised its ugly head again. The Federalist majority in Congress did not
override.
It was another 17 years before the next veto. Madison, who had strongly argued for the veto,
used it seven times. Congress first overrode a
presidential veto, one of Tyler's ten, in 1845, more than fifty years and
43 vetoes after Washington's first.
So who used it more than the median? Fast forward to post civil war
days:
·
Andrew Johnson -- 29 in less than two
Congresses with 15 -- more than half -- overridden as he battled for reconstruction
moderation as Lincoln had intended versus the Radical Republicans who wanted to
hammer the South. Little wonder that
Congress wound up impeaching Johnson.
·
US Grant -- despite enjoying a solid Republican
Congress, Grant still vetoed 93 times. I
guess he was accustomed to having his own way.
Overridden only four times.
·
Now we come to opening the flood gates. Grover Cleveland -- 584 in eight years, four
Congresses! Cleveland was an interesting
character, the first Democrat elected to the Presidency since Buchanan, the
first to win popular but lose electoral votes, the only one to win non-consecutive
terms, in 1884 and again in 1892. Cleveland was pro-business, anti-labor, for
sound (read gold) money, against government spending and farm and mining subsidies. He was
what we would come in another 40 years to call a Southern Democrat -- but
Cleveland was from Buffalo, NY. Most of
his vetoes were of bills granting lifetime pensions to widows of Civil War vets
of questionable merit -- the vets, I mean, not the widows. He
used the pocket veto a lot, but of his 346 "active", i.e., in session
vetoes, only seven were overridden.
·
When Teddy Roosevelt ascended to the Oval
Office, conservative Republicans, who thought they had safely kicked the pesky progressive
reformer upstairs into the harmless vice presidency, found themselves in a
battle. Teddy vetoed 82 bills and had
only one overridden.
·
FDR has the record: 635 vetoes, of which 40%
were via pocket. But that was over 12
years and into his seventh Congress. Overridden
nine times.
·
Truman, of course, faced that
"do-nothing" 80th Congress. He
dealt with four Congresses to whom he issued 180 veto messages, plus another 70
via his pocket. Despite the Republican
majority with their southern Democratic allies, he was overturned only 12
times.
·
Lest one think that an un-elected President and
the only one since the 19th C to have served as Speaker of the House would be more respectful of
Congress's will, Gerald Ford wielded the veto pen 66 times in less than two and a half years.
·
Reagan, with a Democratic House and sometimes
Senate, needed 78 vetoes to work his will; all but nine successfully.
From there, it tails off: Clinton, 37; Dubya, twelve; Obama, just two. I think the reason is the filibuster threat in
the Senate and Dennis Hastert's majority-of-the-majority standard in the House. These have gummed up the legislative process,
and threats of veto embolden opposition to the majorities. Congress also plays games with
"adjournment" to forestall pocket vetoes. We'll see fewer vetoes until legislators come
to their senses and start legislating with simple and just majorities once
again.
So, was Hamilton right: rarely used and even more rarely
overridden? Not so on usage ... 2,564 vetoes overall. But on overrides, yes. Presidents are upheld: 110 overrides, 4% of
total vetoes and -- a better measure -- just 7% of "active" vetoes. The President prevails 96% of the time.
Two
hundred, twenty-eight years ago, Madison, Hamilton, Randolph and the other
founders, watching state legislators grasp for more power and foreseeing how factionalism
could pervert thoughtful, deliberative government, conceived a federal system with
separate and balanced powers and gave each tools to protect their independence. For the Executive, that tool is the veto. And yes, it's working as those remarkably
farsighted founders intended. Now if we
can just get those clowns in Washington to get to work ....
