Veto power in the United States

Both the president of the United States and US state governors usually issue a veto statement or veto message that provides their reasons for vetoing a measure when returning it to Congress or the state legislature, as required by the US Constitution, state constitutions, or by custom.[7][8][9] Those statements do not have precedential value, although their reasoning may be respected within the executive branch, and can contribute to the American constitutional tradition.[9] However, unlike a presidential signing statement, a veto statement does not carry much direct weight in the American legal system, because of its function: if Congress fails to override the veto, the bill and veto become legally irrelevant, but if the override succeeds, the veto message is not considered during subsequent executive implementation or judicial interpretation of the law.[8]

The president or the state governor may sign the veto statement at a signing ceremony, often with media present, particularly for measures that they wish to disapprove of in a very public fashion.[10][11]

In the Thirteen Colonies, the British colonial government exercised two forms of veto: an absolute veto exercised by the governor of each colony (except for Connecticut, Maryland, and Rhode Island), and another absolute veto exercised by the British king, typically acting through the Board of Trade.[12] Both vetoes were absolute and derived from the monarch's power to deny royal assent. While the British monarch last used this power within the United Kingdom in 1708, in the colonies the practice continued for much longer. From 1696 to 1765, the king struck down nearly 400 laws that had been adopted by an American colonial legislature and approved by the colony's governor.[12] This heavy use of the veto power was included in the bill of particulars in the Declaration of Independence in 1776, which states that the king "has refused his Assent to Laws, the most wholesome and necessary for the common good."[12]

In the years immediately following independence, in the Confederation period, most state constitutions did not provide for a gubernatorial veto at all.[13] Nationally, the President of the Continental Congress likewise lacked a veto power.[14] There were three exceptions. South Carolina initially provided for an absolute veto, but after governor John Rutledge vetoed the new state constitution, he was forced to resign, and his successor signed a constitution that did not provide for any veto power.[14] In Massachusetts, the constitution of 1780 provided for a qualified veto, in which a gubernatorial veto could be overridden by a two-thirds vote of each chamber of the legislature.[14] And the 1777 New York constitution established a "Council of Revision" made up of the governor, chancellor and state Supreme Court judges, which could issue a qualified veto of legislation.[14] The Massachusetts and New York constitutions were the only state-level vetoes at the time of the constitutional convention in 1787, and served as models for the framing of the veto power in the United States Constitution.[14]

With the enactment of the United States Constitution (which took effect on March 4, 1789) veto power was conferred upon the President of the United States.[15] During the Constitutional Convention, the veto was routinely referred to as a "revisionary power".[16] The veto was constructed not as an absolute veto, but rather with limits, such as that Congress can override a veto, and that the president's objections must be stated in writing.[17] Further, as Elbridge Gerry explained in the final days of the convention: "The primary object of the revisionary check of the President is not to protect the general interest, but to defend his own department."[18]

During the Constitutional Convention the framers overwhelmingly rejected three proposals for an absolute veto.[19][20] They also rejected proposals for a combined judicial-executive veto along the lines of the New York constitution.[21]

Political cartoon regarding Calvin Coolidge's veto of the McNary–Haugen Farm Relief Bill.

The presidential veto power provided by the 1789 Constitution was first exercised on April 5, 1792 when President George Washington vetoed a bill outlining a new apportionment formula.[22] Apportionment described how Congress divides seats in the House of Representatives among the states based on the US census figures. Washington's stated reasons for vetoing the bill were that it did not apportion representatives according to states' relative populations and that it gave eight states more than one representative per 30,000 residents, in violation of the Constitution.[23]

The veto power continued to be very rarely used until the presidency of Andrew Jackson, who vetoed 12 bills.[24] Although controversial, none of these vetoes were overridden. Congress first overrode a presidential veto on March 3, 1845.[25]

In 1983, the Supreme Court struck down the one-house legislative veto, on separation of powers grounds and on grounds that the action by one house of Congress violated the Constitutional requirement of bicameralism. The case was INS v. Chadha, concerning a foreign exchange student in Ohio who had been born in Kenya but whose parents were from India. Because he was not born in India, he was not an Indian citizen. Because his parents were not Kenyan citizens, he was not Kenyan. Thus, he had nowhere to go when his student visa expired because neither country would take him, so he overstayed his visa and was ordered to show cause why he should not be deported from the United States.[26]

The Immigration and Nationality Act was one of many acts of Congress passed since the 1930s, which contained a provision allowing either house of that legislature to nullify decisions of agencies in the executive branch simply by passing a resolution. In this case, Chadha's deportation was suspended and the House of Representatives passed a resolution overturning the suspension, so that the deportation proceedings would continue. This, the court held, amounted to the House of Representatives passing legislation without the concurrence of the Senate, and without presenting the legislation to the president for consideration and approval (or veto). Thus, the constitutional principle of bicameralism and the separation of powers doctrine were disregarded in this case, and this legislative veto of executive decisions was struck down.

Paul Ryan and Russ Feingold introducing a line-item veto bill in 2007.

In 1996, the United States Congress passed, and President Bill Clinton signed, the Line Item Veto Act of 1996. This act allowed the president to veto individual items of budgeted expenditures from appropriations bills instead of vetoing the entire bill and sending it back to Congress. However, this line-item veto was immediately challenged by members of Congress who disagreed with it. In 1998, the Supreme Court ruled 6–3 to declare the line-item veto unconstitutional. In Clinton v. City of New York (524 U.S. 417 (1998)), the court found the language of the Constitution required each bill presented to the president to be either approved or rejected as a whole. An action by which the president might pick and choose which parts of the bill to approve or not approve amounted to the president acting as a legislator instead of an executive and head of state—and particularly as a single legislator acting in place of the entire Congress—thereby violating the separation of powers doctrine.[27] Prior to this ruling, President Clinton had applied the line-item veto to the federal budget 82 times.[28][29]

In 2006, Senator Bill Frist introduced the Legislative Line Item Veto Act of 2006 in the United States Senate. Rather than provide for an actual legislative veto, however, the procedure created by the act provides that, if the president should recommend the rescission of a budgetary line item from a budget bill he previously signed into law—a power he already possesses pursuant to U.S. Const. Article II—the Congress must vote on his request within ten days. Because the legislation that is the subject of the president's request (or "special message", in the language of the bill) was already enacted and signed into law, the vote by the Congress would be ordinary legislative action, not any kind of veto—whether line-item, legislative or any other sort. The House passed this measure, but the Senate never considered it, so the bill expired and never became law.[30]

In 2009, Senators Russ Feingold and John McCain introduced legislation of a limited version of the line-item veto. This bill would give the president the power to withdraw earmarks in new bills by sending the bill back to Congress minus the line-item vetoed earmark. Congress would then vote on the line-item vetoed bill with a majority vote under fast track rules to make any deadlines the bill had.[31][32][33]

Amendatory veto

Allows a governor to amend bills that have been passed by the legislature. Revisions are subject to confirmation or rejection by the legislature.[35]

Line item veto

Allows a governor to remove specific sections of a bill that the legislature has passed. The legislature can override these changes.[35] 44 governors have this power.[34] In some states, including Missouri, Ohio, South Carolina and Washington, this power is limited to budget and spending bills.[34] The first state to adopt a line-item veto was Georgia, in 1861.[36]

Pocket veto

Any bill presented to a governor after a session has ended must be signed to become law. A governor can refuse to sign such a bill and it will expire. Such vetoes cannot be overridden.[35] The governors of 11 states and Puerto Rico have some form of pocket veto.[37]

Reduction veto

Allows a governor to reduce the amounts budgeted for spending items. Reductions can be overridden by the legislature.[35]

Package veto

Allows a governor to veto an entire bill. Package vetoes can be overridden by the legislature.[35] All 50 state governors have this power.[34] The last state to provide this power was North Carolina in 1996.[34]