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His Majesty, the President

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In early April, the White House warned that President Obama would veto H.R. 1363, which would have provided only short-term defense funding and was being used by the GOP to compel budget cuts.

A few days later, the White House threatened to veto H.R.1217, a bill that would have repealed a public-health fund intended to encourage Americans to eat well and exercise. The bill had passed the House but faced stiff opposition in the Senate. The threat of veto almost guaranteed H.R.1217 would never reach Obama’s desk.

Other bills that Obama has threatened to veto since the beginning of the year include:

Department of Defense Appropriates Bill H.R.1,

Repealing the Affordable Care Act H.R.2 ,

Energy Tax Prevention Act H.R.910,

Emergency Mortgage Relief Program Termination Act H.R.836,

FAA Reauthorization and Reform Act H.R.658,

FHA Refinance Program Termination Act H.R.830,

HAMP Termination Act H.R.839 and,

The Neighborhood Stabilization Program (NSP) Termination Act H.R.861.

Obama has used the presidential veto less than most of his predecessors but, clearly, he is wielding the threat of it as a powerful way to flex executive power. With House Republican Speaker John Boehner currently taking a rock-hard line on the concessions required before the GOP will vote to raise the debt ceiling, the game of “political chicken” between Congress and executive power will not only continue but probably accelerate.

In this high-stakes game, it is important to understand the nature of a presidential veto, as well as is its roots and history.

A presidential veto is a power vested in the executive branch of government by the U.S. Constitution (Article I, section 7) through which the president can prevent the enactment of congressional legislation. When a bill passes both houses of Congress, it arrives on the president’s desk. He has 10 days (excluding Sundays) to accept the measure by signing it or to return it to Congress with an explanation of its rejection. Mere failure to sign is deemed to be approval and the measure becomes law. (Note: There is an exception. If Congress is adjourned, the president can exercise an indirect or “pocket veto” by merely ignoring it.) If a bill is returned to Congress, it may be discarded or revised to accommodate the president’s objections and, then, returned to his desk. A third alternative is for Congress to attempt an override of the veto; if a two-thirds majority vote of all members present in both houses approve the bill, then it becomes law. Usually, however, the mere threat of a presidential veto causes a bill to stall or to be preemptively revised.

The veto was part of the Constitution’s tripartite division of government: the executive (president), legislative (Congress) , and judiciary (Supreme Court). The tripartite structure designed to limit power through a series of checks and balances. The veto was a powerful executive check on Congress that becomes ever more potent during times of deep political division when one party controls the White House and the other party dominates one or both houses of Congress. Through the dissent of one man, the elected representatives of a nation can be thwarted and the will of the weaker party can continue.

It is common to call the president of the United States “the most powerful person in the free world”; no small part of that power comes from the veto. Indeed, people have called the veto a monarchical power. The term is apt; it speaks directly to the origin of the presidential veto within the British Parliamentary system or, more generally, within the constitutional monarchical system. There, the right to veto has long been a prerogative of kings and queens.

In the UK, the power is called the Royal Assent and it is required for a bill to become an Act of Parliament. If a British monarch withholds assent, the bill is blocked. If he or she reserves assent, the bill is deferred. Thus, the enacting clause that must accompany every Act of Parliament within the various nations of the United Kingdom makes note of having received the Royal Assent.

During the 14th to the 16th centuries in England, the powers of Parliament expanded, especially in the area of taxation, and it became commonplace for a monarch to enact new laws or policies in consultation with members of Parliament. In turn, a summoned Parliament often submitted bills to the monarch for approval. In general, both parties benefited as the laws they sought acquired legitimacy and popularity through the process. Over time, the monarch lost his power to originate laws and was reduced to approving or vetoing them. Monarchs were under no obligation to assent, however, and often flexed their royal power over Parliament. Elizabeth I was notorious for rarely exercising her right to summon Parliament and for denying royal assent to its bills.

Increasingly, however, Royal Assent became a given. In 1708, Queen Anne became the last British monarch to exercise a royal veto by withholding assent from a Parliamentary Act. (The present Queen Elizabeth II has withheld consent but, technically, the precedent she acted upon is called Queen’s Consent, which can be invoked to prevent a bill that bears on the reserve powers of the monarchy from even being heard by Parliament.) Thus, the Royal Assent has become a formality.

Meanwhile, the presidential veto has increased in power and presence.

The Veto in America

Assemblies within the royal colonies of America incorporated a form of Royal Assent. The assemblies that made laws could be blocked by the Royal Governor who, like the monarch, had an absolute right of veto; that is, a veto with no override. Moreover, both the British Parliament and the monarch (through his representatives) could also veto colonial law. Collectively, they constituted the executive power in colonial America. When the Declaration of Independence states,

“He [King George III] has refused his assent to laws, the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained…” the document is, in fact, complaining about the power of Royal Assent.

It was little wonder post-revolutionary America was reluctant to grant state governors the power to veto. New York became the first to do so. The New York Constitution of 1777 provided for veto power by a Council of Revision that consisted of the governor and a panel of judges. The council had ten days after a bill passed to exercise its veto, which could be overturned by a 2/3 vote of both state houses. In 1780 and building on the New York model, John Adams drafted the Massachusetts Constitution. The document spelled out a tripartite division of powers, with a two-house legislature, an executive with strong veto power and a judiciary with life tenure. When the Constitutional Convention met in 1787, it drew heavily upon the Massachusetts model to create the U.S. Constitution.

Historians have speculated on why men suspicious of Royal Assent would have included even a limited executive veto. Ronald C. Moe in his essay “The Founders and Their Experience with the Executive Veto” argues that the Framers of the Constitution believed that the veto exercised by colonial governors had been a positive part of those administrations. The negatives were associated closely with the assent required from Britain itself. Even then, however, the Convention limited the executive veto by giving the legislature power to override and by restricting his veto to federal laws. The 10-day limit for the president’s signature also eliminated an aspect of Royal Assent about which colonials had bitterly complained: namely, the unreasonable amount of time it took to receive approval of laws from Britain.

Early presidents used their veto power with caution. America’s first president, George Washington, debuted the presidential veto power in 1792; only one more would occur during his two terms. The subsequent two-term presidency of Thomas Jefferson would contain no vetoes. But a trend toward using the power as a tool to shape and impose policy slowly took hold. During the presidency of Franklin D. Roosevelt (1933-1945, elected for four terms), the combined number of direct and pocket vetoes rose to 635.

One of the predecessors upon whom President Obama consciously models himself is Roosevelt; under Roosevelt, the executive power swelled and the veto was employed as a potent political weapon not to check and balance but to control policy.

The great power of the direct veto comes from how difficult it is to override. The power of the pocket veto comes from how often important matters are completed in the last days of a session; once Congress adjourns and passes the 11th-hour bills along to the president, he can quietly “pocket” them.

Conflicts between the Republicans and Democrats will deepen in the coming months over a wide range of issues from economic (the debt ceiling) to moral (abortion). The House of Representatives is currently dominated by Republicans. If the next election returns a similarly dominated Senate and President Obama’s reelection, then expect to see the presidential veto assume a more dynamic role in American politics than any time since Roosevelt.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).