Executive veto

“ But it has been urged by those who object to the exercise of this undoubted constitutional power that it assails the representative principle and the capacity of the people to govern themselves; that there is greater safety in a numerous representative body than in the single Executive created by the Constitution, and that the Executive veto is a "one-man power," despotic in its character. ”

“ The power to exercise a legislative veto is not the power to write new law without bicameral approval or Presidential consideration. The veto must be authorized by statute, and may only negative what an Executive department or independent agency has proposed. On its face, the legislative veto no more allows one House of Congress to make law than does the Presidential veto confer such power upon the President. ”

“ But it is not the frequent use of the power of the veto, it is not the readiness with which men yield their own opinions, and see important powers practically obliterated from the Constitution, in order to subserve the interest of the party, it is not even all this which furnishes, at the present moment, the most striking demonstration of the increase of executive authority. ”

“ A person elected to that high office, having his constituents in every section, State, and subdivision of the Union, must consider himself bound by the most solemn sanctions to guard, protect, and defend the rights of all and of every portion, great or small, from the injustice and oppression of the rest. I consider the veto power, therefore, given by the Constitution to the Executive of the United States solely as a conservative power, to be used only, first, to protect the Constitution from violation ”

“ I do not suggest that all legislative vetoes are necessarily consistent with separation of powers principles. A legislative check on an inherently executive function, for example, that of initiating prosecutions, poses an entirely different question. But the legislative veto device here — and in many other settings — is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies, both Executive and independent, as they engage in exercising authority delegated by Congress. ”

“ We may, indeed, if insensible to our own rights and independence, give an undue influence to the veto power; but we shall never produce this effect if we confine ourselves to our own appropriate duties, and leave the Executive to perform his. This example will never, I think, be imitated by any party in the country, and we shall then never again be tempted to make war on the veto power. ”

“ And yet how rarely has any Executive had the courage to apply the remedy which the veto power presents?
Let us, for a moment, examine the workings of this system. It is the more dangerous, because it presents itself to individual members under the garb of devotion to their constituents. One has a measure of mere local advantage to carry, which ought, if at all, to be accomplished by individual enterprise, and which could not pass if it stood alone. He finds that he cannot accomplish his object, if he relies only upon its merits. ”

“ If Congress may delegate lawmaking power to independent and Executive agencies, it is most difficult to understand Art. I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral [p987] approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. ”

“ In a democracy, it is the electorate that holds the legislators accountable for the wisdom of their choices. It is hard to maintain that a private bill receives any greater individualized scrutiny than a resolution [p998] of disapproval under § 244 (c) (2) . Certainly the legislative veto is no more susceptible to this attack than the Court's increasingly common practice of according weight to the failure of Congress to disturb an Executive or independent agency's action. ”

“ The veto is, in fact, a sort of appeal to the people. The executive power, which, without this security, might have been secretly oppressed, adopts this means of pleading its cause and stating its motives. But if the legislature is certain of overpowering all resistance by persevering in its plans, I reply, that in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator is obliged to have recourse to the good sense and the virtue of his fellow-citizens. ”

“ The revenues will be managed by a treasury bank. The use of the veto will be considered as sanctioned by the public voice. The Senate, if not "cut down," will be bound down, and, the President commanding the army and the navy, and holding all places of trust to be party property, what will then be left, Sir, for constitutional reliance?
Sir, we have been accustomed to venerate the judiciary, and to repose hopes of safety on that branch of the government. But let us not deceive ourselves. The judicial power cannot stand for a long time against the executive power. ”

“ Every one who has paid any attention to the progress of our institutions, must have witnessed the constant increase of Executive prerogative and power. The veto power has now become an ordinary power in the hands of the President, and no Chief Magistrate has ever been guilty of a greater abuse of it than the present incumbent of the White House. This abuse of the veto power justly merits the rebuke of Congress. But his conduct in relation to this war is still more reprehensible. ”

“ III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. ”

“ When a measure has been vetoed there is great difficulty, as a rule, in obtaining the necessary two-thirds vote to override the veto; but vetoes, nevertheless, are occasionally overcome. The use of the veto, although it is an exercise of executive power, makes the President a vital factor in legislation. Under ordinary circumstances he can defeat any measure that is not acceptable to him. ”

“ By electors appointed by the people under the direction of the legislatures—by a union of the interest of the people and the state governments. The state governments can put a veto, at any time, on the general government, by ceasing to continue the executive power. Admitting the representatives or senators could make corrupt laws, they can neither execute them themselves, nor appoint the executive. ”

“ It leaked out from the executive chambers that a veto message was being prepared. The Governor had ten days in which to veto the bill, otherwise it became a law by default. It was on the afternoon of the last day, shortly after the Senate had re-assembled, when one of my attorneys, Creed Haymond, said in a musing way, “If the Senate could only be induced to adjourn we would not have to worry about a veto message. Then it could not be delivered to anyone, and by twelve o’clock to-night would become a law.” ”

“ Not infrequently it has made the exercise of delegated powers contingent upon prior congressional approval or disapproval.
With the exception of the last category, however, Congress has not effectively wielded the tool it engineered. The veto resolution has received ample use because the executive automatically initiates congressional review when it invokes the delegated power which is subject to veto. ”

“ But the Convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the Executive magistrate, and make its efficacy to depend on the sense of a considerable part of the Legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single veto, might not scruple to return it for reconsideration ”

“ The delay of a few months is the only effect of a veto, in a case where the people shall ultimately approve a law; where they do not approve it, the interposition of the veto is the barrier which saves them the adoption of a law, the repeal of which might afterwards be almost impossible. The qualified negative is, therefore, a beneficent power, intended, as General Hamilton expressly declares in the 'Federalist,' to protect, first, the executive department from the encroachments of the legislative department ”

“ The qualified veto is the form most generally employed in constitutional States. It allows the executive a negative on all bills passed by the legislature, subject to the power of the legislature to override the effect of the veto by an extraordinary majority. The absolute veto is one which cannot be overridden by the legislature either by the usual or extraordinary majority. ”

“ July 16, 1866, the President vetoed the bill as a matter of course. He could have pursued no other action without self-contradiction. Congress, moreover, could not have reasonably expected a different result. It framed the bill not with an eye for executive approval, but with regard to its ability to pass it over the disapproval of that official, which it did on the same day the veto message was received, thereby making it a law of the land." O. Skinner, The Issues of American Politics, part 2, chapter 2. ”

“ Complete independence and separation between the three branches, however, are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it easily demonstrate. By affirmative action through the veto power, the executive and one more than one-third of either House may defeat all legislation. One-half of the House and two-thirds of the Senate may impeach and remove the members of the judiciary. ”

“ They are not executive officers, for such perform functions distinctively outside judicial investigation, but as distinctively within the political powers of the legislature. The judiciary is a powerful limitation of ministerial powers, in the sense that the performance of those powers is examinable in courts of law.419
In the popular mind the veto power may seem to be the principal executive check on legislation. This conviction takes form in State constitutions420 which authorize the Governor to veto any item in an appropriation bill, or to cut the item down. ”

“ The framers of the Constitution intended that the veto power should be a check, though not an absolute one, upon hasty or unwise legislation. The President may cause a bill to fail by neither signing nor vetoing it during the last ten days of a session. ”

“ He is not invested with power to defeat legislation by an absolute veto, but only to restrain it, and is charged with the duty, in case he disapproves a measure, of invoking a second and a more deliberate and solemn consideration of it on the part of Congress. ”

“ It is an important, if not indispensable, political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves [p973] Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory. ”

“ We can hardly assume that a President would invite further congressional action by a return of a bill with his veto to a secretary or other officer of the House concerned, during its adjournment, if, by retention of the bill without signing, he could make the veto absolute. ”

“ It is, in fact, but an appeal taken by the President from the decision of Congress, in a particular case, to the tribunal of the sovereign people of the several States, who are equally the masters of both. If they decide against the President, their decision must finally prevail, by the admission of the Senator himself. The same President must either carry it into execution himself, or the next President whom they elect, will do so. The veto never can do more than postpone legislative action on the measure of which it is the subject, until the will of the people can be fairly expressed. ”