The Presidential Power of Veto: Where Did it Come From?
The American presidency, called one of the most powerful offices in the world, was the creation of the framers of the Constitution at the Philadelphia Convention of 1787. This Convention, often referred to as the “Constitutional Convention” imbued the presidency with selected powers. One of those powers, and perhaps the most famous of them, is the power of veto, the president’s power to reject bills passed by Congress.
A veto is a political weapon; it allows the president to slow down and even kill a bill passed by the Congress. The word “veto” is Latin, which means “I forbid.” The veto is a part of the checks and balances system created by the constitutional framers to limit the powers of Congress, but also to ensure presidential cooperation in carrying out the law. In this essay I look at where the framers of the Constitution got the idea of a presidential veto. Later, I will provide a more modern assessment of the presidential veto since it was created.
The Veto in Europe
Throughout European history, the veto power was exercised in various forms by rulers or elites within a government. In Rome, the tribal leaders of the plebes (the “tribunes”) had the power to reject legislation from the Roman Senate. In medieval England, the King of England was the supreme lawmaker, but governed through agents such as judges and councils like the “Privy Council.” By the 14th century, a Parliament was regularly meeting and advising the crown with written bills on their recommended legislation. Over time, the king lost the authority to make laws and slowly was reduced to ether approving them or rejecting them. His method of rejecting an act of Parliament was to refuse to give the "royal assent."
In 1597 Elizabeth I refused the royal assent to most parliamentary bills. James I, though he rejected no bills in 1606, told the people it was an act of his grace that he spared them. Charles I refused the royal assent for a militia bill which some have said precipitated the 1643 revolution (Parliament enacted the bill anyway). The last English monarch to refuse the royal assent was Queen Anne in 1707.
The Veto in America
During the Colonial Era of American history, colonial assemblies made laws that could be vetoed by the royal governor (in royal colonies he had an absolute veto, that is, a veto with no override). Also, both Parliament and the monarch could veto colonial legislation. However, vetoes from across the Atlantic were rare. It is estimated that over 80 percent of laws passed by the colonies went untouched by the king and Parliament.
Over time, the governor’s and Crown’s use of the veto became a grievance to the colonials. When Jefferson said in the Declaration of Independence “He [King George III] has refused his assent to laws, the most wholesome and necessary for the public good” and “He has forbidden his governors to pass laws of immediate and pressing importance” He was expressing two grievances on the veto power.
During and after the Revolutionary War, most states sought to subordinate their governors (if they had one) to their legislatures. After 1778 and until the Constitutional Convention, no state gave its executive the sole power of veto. Earlier, New York's 1777 Constitution provided an exception in giving their governor broad powers, including a shared veto power.
The New York Constitution allowed for a Council of Revision, made up the governor and judges. This Council had ten days after a bill was passed to consider and revise it. A majority of this council could also veto a bill and return that bill to the house of origin with the objections. The legislature could override the veto with a 2/3 vote of both houses. The New York Constitution of 1777 was the model for the state of Massachusetts’ 1780 constitutional executive veto and was probably the most important document in shaping the veto powers that would later be given to the American presidency in the US Constitution.
The Veto and the Constitutional Convention
One of the questions considered early at the Constitutional Convention was whether or not the new government would have an executive. It was early decided that the new government would have an executive and that it would be a single executive (as opposed to executive committees which they had used under the Confederation Congress). When the issue of the executive’s powers over legislation was considered, several questions pertaining to the veto were broached:
- Would the president veto with a council or alone?
- Could the veto be overridden? And if so, by how much?
- Could the veto power be held by other members of the national government?
- Could the executive (or the Congress) veto state laws?
In the end, the framers of the Constitution decided that the veto would be the sole property of the president and this veto would be a qualified one, and not absolute like it had been under the royal governors. Should the president veto an act of Congress, he would also have to offer a veto message to the Congress, explaining why he rejected the legislation. And, like the New York arrangement, the legislature could override the president’s veto with a 2/3 vote. Finally, they decided that the presidential veto would be limited to national laws and could not be used to strike down state laws.
In the end, the framers wanted the president to be sufficiently energetic; however, they also did not want a tyrant. They gave the president a formidable weapon against legislation he opposes. But the power is not absolute: Congress can surmount this presidential weapon if a sufficient number of them unite to oppose him.