VETO POWER

After rejecting an absolute veto for the President, the delegates at the constitutional convention of 1787 granted the President a qualified power to veto congressional legislation, subject to an override by a two-thirds majority of each house of Congress. Some anti-Federalists objected to the veto as an encroachment upon the legislative power in violation of the separation of powers doctrine, but alexander hamilton answered in the federalist #73 that the President needed a veto to protect the executive branch from "depredations" by the legislature. The veto was also designed to be used against bills that were constitutionally defective, poorly drafted, or injurious to the community.

The Constitution provides that any bill not returned by the President "within ten Days (Sundays excepted)" shall become law "unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." The latter procedure, known as the pocket veto, was first used by President james madison in 1812. In the pocket veto case of 1929, the Supreme Court decided that "adjournment" did not refer merely to final adjournment at the end of a Congress. The pocket veto could be used during any adjournment, final or interim, that "prevented" a bill's return to Congress. However, in Wright v. United States (1938) the Court considered a three-day recess by the Senate too short a period to constitute adjournment.

Further clarification of the pocket veto resulted from an action by President richard m. nixon. In 1970, during an adjournment of Congress for less than a week, he pocket-vetoed the Family Practice of Medicine Bill. An appellate court, in Kennedy v. Sampson (1974), held that an intra session adjournment of Congress does not prevent the President from returning a bill so long as Congress makes appropriate arrangements to receive presidential messages. The gerald r. ford and jimmy carter administrations renounced pocket vetoes during inter session adjournments as well. This political accommodation restricted the pocket veto to the final adjournment at the end of the second session. President ronald w. reagan, however, has used the pocket veto between the first and second sessions, provoking renewed litigation.

Other court decisions have clarified the boundaries of the veto power. In 1919, in Missouri Pacific Railway Co. v. Kansas, the Supreme Court announced that the Constitution required only two-thirds of a quorum in each House to override a veto, not two-thirds of the total membership. In 1899 the Court decided, in La Abra Silver Mining Co. v. United States, that the President could sign a bill after Congress recessed, and in Edwards v. United States (1932) the Court ruled that he could sign a bill after a final adjournment of Congress.

Statistics underscore the effectiveness of the President's veto. Of the 1,380 regular (return) vetoes from george washington through Jimmy Carter, Congress overrode only ninety-four. There have also been 1,011 pocket vetoes, more than half of them directed by grover cleveland and franklin d. roosevelt against private relief bills.

Most of the governors of the states have been granted authority to veto individual items of a bill (the "item veto"). Congress has thus far resisted giving this power to the President, despite popular belief that such a power would increase "economy and efficiency" by combating "logrolling" and "pork-barrel" politics in Congress. Prominent among the arguments against the item veto is the danger that Presidents could use the authority to control the votes of individual members of Congress. A project in a member's district or state could be held hostage until he or she agreed to support a nominee or legislative proposal backed by the White House.

An informal type of item veto has evolved because Presidents selectively enforce the law. In signing a bill, Presidents have announced that they would refuse to carry out certain provisions which they considered unconstitutional or undesirable. The impoundment of funds has been a common example, but Presidents have also severed from authorization bills a number of sections they considered a "nullity," without binding force or effect.

Louis Fisher
(1986)

Bibliography

Fisher, Louis 1985 Constitutional Conflicts between Congress and the President. Princeton, N.J.: Princeton University Press.

Jackson, Carlton 1967 Presidential Vetoes, 1792–1945. Athens: University of Georgia Press.

Mason, Edward Campbell 1890 The Veto Power. New York: Russell & Russell.