Washington Update: The Vehement Veto
The U.S. House passed legislation in late February that would block President Donald Trump’s emergency declaration allowing him to sidestep Congress in order to construct a wall on the southern border. The vote for the bill was strong – 245 to 182, with 13 Republicans joining the Democratic majority – but not strong enough to withstand a presidential veto. (The Constitution requires 290 votes, or two-thirds of the House, to override a veto.)
The Senate is expected to tackle the issue soon. Already four GOP senators – Susan Collins of Maine, Lisa Murkowski of Alaska, Rand Paul of Kentucky, and Thom Tillis of North Carolina – have said they will support the Democrats’ House legislation and cast their votes in opposition to President Trump’s emergency declaration. This quartet’s willingness to go against their own president is significant, though, like in the House, the Senate’s again numbers aren’t large enough to overturn a presidential veto.
History tells us that’s not surprising. Since George Washington was sworn in as the first American president, our commanders in chief have collectively issued 2,574 vetoes over the course of American history. Only 111, or four percent, have been overridden by Congress.
The right of the president to veto legislation is enshrined in Article I, Section 7 of the U.S. Constitution. There are two types of vetoes: the regular veto, where the president actively sends a bill back to Congress, often with a message accompanying it that describes the specific reasons the president refused to enact the bill into law. There is also the pocket veto, which happens when the president does nothing with a bill and Congress is adjourned. (When Congress is in session, the president has 10 days, not counting Sundays, to veto a bill or the legislation automatically will become law.)
Alexander Hamilton argued for a presidential veto in early 1788, just months before the Constitution was ratified. In the 73rd essay of The Federalist Papers, Hamilton argued giving the chief executive veto authority would establish “a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good ...” Hamilton also advised “there would be greater danger” in a president’s “not using his power when necessary” and little danger in the president “using it too often, or too much.”
In deference to the American democracy’s system of checks and balances, most occupants of the White House have used their veto pen little. In fact, it took President George Washington almost three years – until April 5, 1792 – to issue a veto.
What irritated Washington so? As the Foundation for Economic Education explains, the U.S. Constitution says Congress shall apportion U.S. House seats according to population. Congress, though, passed legislation that set representation by population, but then also threw in an extra member for larger states, a move that would have “inflate[d] the influence of the Federalists over their smaller-government rivals.” Secretary of State Thomas Jefferson was irate, and advised Washington to veto. Treasury Secretary Alexander Hamilton, a New Yorker, favored the bill. Jefferson won that battle.
The nation’s fourth president, James Madison (who, with Hamilton, wrote the bulk of The Federalist Papers) was more liberal with the veto pen, using it seven times during his eight years in office. Madison also was the first chief executive to use the pocket veto, standing pat on immigration-related legislation in 1812. (In his veto message, President Madison said the bill was “liable to abuse by aliens having no real purpose of effectuating a naturalization.”)
According to U.S. House historians, Congress didn’t successfully override a veto until March 3, 1845. President John Tyler opposed S. 66, a spending bill, because it would have kept the president from authorizing the construction of new Coast Guard ships without congressional approval. President Tyler wanted to protect existing contracts and “to retain presidential prerogative.” Lawmakers didn’t agree. Only one senator voted against the override. (The House vote was 126-31.)
Use of the veto grew after the Civil War. President Andrew Johnson used the pen 29 times, including to veto three reconstruction-related bills. (He also vetoed statehood for Colorado, Nebraska, and Arkansas.) More than half (15) of President Johnson’s vetoes were overridden, including an 1866 civil rights bill. In his veto message, Johnson said freed slaves were not qualified to become U.S. citizens.
Johnson’s successor, President Ulysses S. Grant, vetoed 93 pieces of legislation and was overridden only four times. Grant was the most prolific user of the veto up to that point because, according to the Encyclopedia Britannica, “In the face of a devastating economic depression that started in 1873, Congress sought to add more greenbacks to the American circulation, thus increasing the amount of legal tender available to the suffering American population.”
An anomaly during the late 19th century was President James Garfield, who despite naming his dog Veto, never actually exercised his constitutionally-authorized power.
Presidents Grover Cleveland and Franklin Roosevelt are America’s most prolific users of the veto pen. In his two non-sequential terms in office, Cleveland vetoed 584 pieces of legislation. In his almost four terms in office, FDR exercised his pen 635 times. These two presidents together account for more than 47 percent of the total 2,574 presidential vetoes.
The use of the veto ebbed after World War II and has declined drastically over the last 30 years. President Ronald Reagan issued 78 vetoes; George H.W. Bush 44; and Bill Clinton just 37.
It took more than five years – more than one full term – before President George W. Bush issued his first veto on July 19, 2006. President Bush vetoed legislation that would have required the Secretary of Health and Human Services to conduct and provide funding for research using human embryonic stem cells, regardless of the date on which the stem cells were derived from a human embryo. President Bush went on to use the veto 11 more times in the remaining two-and-a-half years of his presidency. (Recall that Democrats seized control of the House of Representatives in November of 2006.)
President Barack Obama also exercised the veto only a dozen times, and his first veto actually didn’t make huge headlines. That’s because, as The New York Times explained, “The measure was a stop-gap spending measure for the Pentagon that became unnecessary when the president instead signed the annual Pentagon money bill in time. He then vetoed the five-day, interim bill as unneeded legislation.”
President Donald Trump has been in office for more than two years. The coming veto would be his first. But with Congress split, the outcome is likely to reflect the historical norm: the veto will stand.
Steve Boms is the founder and President of Allon Advocacy, LLC, a Washington, D.C.-based public policy consulting firm. Steve has spent his career focused on complex financial services public policy issues, having worked in the United States Congress on the committee with jurisdiction over banking. He has led advocacy efforts and public policy teams globally for equity options exchanges, large U.S.-based financial institutions, and leading fintech firms. In addition to working directly with Allon's clients, he is a frequent conference panelist and his perspective is solicited by reporters on the technology, financial services, and regulatory beats.
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