Clinton Vetoes Undermine the Constitution

David N. Mayer

June 1, 1996

The budget impasse between President Clinton and Congress raises many troubling questions, not the least of which is the propriety of the president exercising his veto power in order to force his budget priorities on the Congress. The framers of the Constitution entrusted the president with a limited veto power in order to guard against unconstitutional legislation. Modern presidents’ use of the veto against legislation that they simply dislike on policy grounds–as in the case of President Clinton’s vetoes of the Republican balanced-budget plans–undermines the Constitution’s delicate balance between the executive and legislative powers. The recently passed line-item veto law, which gives the president additional power to disapprove specific items in legislation (not only appropriations but also certain changes in tax laws and changes in so-called “entitlement” programs), will exacerbate the constitutional problem.

The veto is generally regarded as a presidential power, but it is not even mentioned in Article II among the powers vested in the president by the Constitution. Instead, the veto is found in the so-called “presentment clause” of Article I, section 7, which outlines the procedures by which bills become laws. This provision specifies that if the president approves of a bill passed by both houses of Congress, “he shall sign it”; but “if not, he shall return it with his objections” to Congress, where the bill may still become law if approved by a two-thirds vote in each house. The veto is a classic example of one of the “checks and balances” of the Constitution, for it gives the chief executive a share in the legislative power, which under the Constitution principally rests with Congress.

Why did the framers of the Constitution give this power to the president? As explained by Alexander Hamilton in the Federalist Papers, the veto was intended to give the president a “shield” against legislation that unconstitutionally interfered with his powers. Without the veto, the president “would be absolutely unable to defend himself against the depredations” of Congress, Hamilton argued. “He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote,” as the Constitution requires only a simple majority for legislation to pass either house of Congress.

Unlike the British monarchs’ absolute veto power, however, the presidential veto is limited: It may be overridden by a two-thirds vote of both houses of Congress. Thus, it was not intended as an absolute check–for unconstitutional legislation could still be passed if sufficient majorities existed in Congress–but as an additional safeguard. As the framers intended, the veto gave a preliminary line of defense against unconstitutional laws before they were put into effect; it made it unnecessary to wait for an actual case or controversy to bring such legislation before the Supreme Court for that body to exercise its power of judicial review to nullify unconstitutional laws. The veto power explains in part why presidents take an oath “to preserve, protect, and defend” the Constitution. The early presidents understood that the limited purpose of the veto was to guard against unconstitutional legislation and, accordingly, they used the veto power very sparingly. Our f
irst president, George Washington, vetoed only two bills. Washington followed the advice of his secretary of state, Thomas Jefferson, who advised him to veto a bill passed by Congress only if his mind were “tolerably clear that it is unauthorized by the Constitution.” Otherwise, Jefferson believed, the president should defer to Congress. “If the pro and con hang so even as to balance” the president’s judgment, “a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion.”

In his two terms as president, Jefferson cast no vetoes at all; his predecessor, John Adams, also cast no vetoes. The only early president to exercise the veto power with any frequency was James Madison, who vetoed seven bills, all on constitutional grounds. Thus in the forty-year period (1789-1829) covered by the first six presidential administrations there were a total of only ten vetoes.

It was Andrew Jackson’s presidency that marked an important change in use of the veto power, both in its frequency and in its rationale. Jackson’s famous veto in 1832 of the bill rechartering the Second Bank of the United States cited not only constitutional grounds but also policy concerns. During his eight years in office, he vetoed twelve bills–more than all his predecessors combined–thereby earning the nickname, “King Andrew,” given him by his political opponents, who called their party “Whig” to emphasize their fears that Jackson was transforming the presidency into a monarchy.

Most of Jackson’s successors during the nineteenth century generally returned to the early tradition of limited use of the veto. Even Abraham Lincoln, a strong president who exercised extraordinary powers during the Civil War, cast only two regular vetoes. “As a rule I think the Congress should originate as well as perfect its measures without external bias,” Lincoln wrote, showing that he, like the early presidents, was reluctant to substitute his judgment on policy matters for that of Congress.

After the Civil War, the number of presidential vetoes increased dramatically, but the majority of vetoes were cast against private bills, granting pensions to Civil War veterans who claimed service-related disabilities but whose claims had been rejected by the Pension Bureau. Ulysses S. Grant, believing many of these claims to be fraudulent, vetoed forty private bills; Grover Cleveland vetoed 482. Forrest McDonald notes that Cleveland’s “veritable orgy” of vetoes was striking– Cleveland used the veto power more than twice as much as his twenty-one predecessors combined– but concludes that almost two-thirds of the bills vetoed during the Constitution’s first two centuries were private bills, not public. These vetoes often were premised on higher law principles, for private bills generally violated the long-standing but unwritten constitutional principle that it was wrong for government to tax some citizens for the benefit of others.

Use of the veto power fell again to a lower level until the presidency of Franklin Roosevelt, when the power again underwent a radical change. William McKinley vetoed only two public bills; Theodore Roosevelt, fifteen; William Howard Taft and Woodrow Wilson, each more than twenty public bills. Franklin Roosevelt, in his twelve years in office, vetoed over 600 bills–despite the fact that he had huge Democratic majorities in Congress who usually gave him what he wanted. As McDonald observes, Roosevelt used the veto “as a method of cracking the whip, to keep Congress subordinate if not subservient.” Thus Roosevelt initiated the modern presidents’ practice of using the veto as a political tool.

This practice was followed by FDR’s successor, Harry Truman, who when faced with a Republican Congress from 1947 to 1949, disapproved over 175 bills, using his veto messages as a means of calling attention to his policies while simultaneously attacking “the do-nothing Eightieth Congress.” President Clinton apparently hopes to follow in Truman’s footsteps by using the veto as a vehicle to help ensure his reelection.

When modern presidents use the veto in so blatantly a political manner, they do more than simply engage in partisanship: they also seriously undermine the Constitution itself. A president who vetoes every piece of legislation that he dislikes on policy grounds forces Congress to accede to his wishes, unless it is able to muster a two-thirds majority in both houses to override the vetoes. Such use of the veto indeed constitutes blackmail. It thwarts not only the will of the people, as manifested in the most recent congressional elections, but also the design of the framers of the Constitution, who intended that the legislative power be vested primarily in the people’s representatives in the Congress. Profligate use of the veto, in effect, transforms the simple majority vote required by Article I to a two-thirds majority requirement–in effect, working a change in the constitutional procedures for enacting legislation.

Twenty-three years ago, in the spring of 1973, a series of articles on the Nixon presidency appeared in the New York Times. Written before the Congressional Watergate hearings began–hearings, of course, that began a chain of events that culminated in President Nixon’s resignation under threat of impeachment–the articles warned that Nixon was “fighting for the strongest presidency since FDR.” Citing not only the Vietnam War but also many aspects of Nixon’s domestic program (including the impoundments of funds appropriated by Congress that exceeded his budget), the articles quoted prominent historian Henry Steele Commager, that Nixon “has usurped or aggrandized authority in almost every field.” The articles portrayed Congress as almost “helpless” against Nixon’s “power grab,” suggesting that “what is at stake . . . is whether Congress survives as a strong and effective branch of government, or whether more power continues to
accumulate in the presidency” without the restraints of the Constitution.

Today, those dangers are far more ominous. President Nixon’s successors in the White House, both Republican and Democrat, have built upon these precedents in their use of presidential powers. The activism of the Clinton administration threatens to establish even more precedents for the use, and abuse, of power. The “imperial presidency” did not end with Richard Nixon; the specter of unbridled executive power today makes the concerns of 1973 pale in comparison.

David N. Mayer, Professor of Law and History at Capital University, in Columbus, is author of The Constitutional Thought of Thomas Jefferson.