August 6, 2010 – Federalist No. 73 – Cathy Gillespie

Friday, August 6th, 2010

Federalist No. 73 begins the examination of the powers of the Presidency, with a discussion of the President’s role in the legislative process, specifically, the veto.  In writing about the veto power, Publius travels back to Article I of the United States Constitution, the section of the Constitution dedicated to the legislative branch.  Nowhere in Article II, the section of the Constitution dedicated to the Executive branch, is the veto power mentioned.

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”–Article I, Section 7, Clause 2 of the United States Constitution

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.”–Article I, Section 7, Clause 3 of the United States Constitution

Article II, the portion of the Constitution describing the executive branch function, states the President’s obligation to provide the Congress information through the State of the Union, recommend proposals for their consideration, convene both Houses in extraordinary circumstances, or adjourn both Houses in the case of disagreement between them with respect to the time of adjournment:

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper….”–Article II, Section 3

The Presidential veto is one of the most important checks and balances in our system of government. By requiring 2/3’s vote in both Houses to override a presidential veto, the Constitution ensures that controversial bills must have overwhelming support of the people, through their representatives in Congress, to become law.

It is interesting that the President’s important power of the veto, never mentioned by the name “veto” in the United States Constitution, is located in Article I, the article describing powers of the legislative branch.  The President, as head of the executive branch, has the power to execute, or carry out the laws of the United States, through the various Departments and agencies.  But through Article I, Section 7, Clauses 2 and 3, he also has the power to enact legislation in two ways:

1. Sign the bill        OR

2. Refuse to sign or return the bill within 10 days (not counting Sundays), when the Congress is in session.

The President has the power to disapprove legislation in two ways:

1. Return the bill “with objections,” (his veto) OR

2. Fail to return or sign the bill within the ten day window during which an Adjournment occurs (known as a pocket veto).

The legislative process and veto power of the President was so important to the framers that they devoted unusual specificity to this subject, detailing the number of days the President has to make his decision to sign, return, or not act, even exempting Sundays in the 10 day period!!!  The 2/3’s required to override the presidential veto is also a well thought out measure addressed in Federalist No. 73:

“It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority.”

Professor Rowley brings up the issue of the line item veto, within the context of the “qualified veto.”  I have been a supporter of the line item veto for many years, ever since President Reagan called for this power in his State of the Union in 1986:

“And tonight, I ask you to give me what 43 Governors have — give me a line-item veto this year. (Applause.) Give me the authority to veto waste, and I’ll take the responsibility, I’ll make the cuts, I’ll take the heat.”

President Clinton finally received the power of the line item veto, but the Supreme Court has since ruled it unconstitutional.  It seems that the only way for the president to have the power of the line item veto would be with a constitutional amendment.  And given the forethought the framers put into devising the structure of the veto, as well as the specificity they devoted describing the process, a constitutional amendment would be the most appropriate way to grant the president this power.

Governors across America have found the line-item veto to be an invaluable tool in cutting spending.  And with the Congress’s propensity to pass 3,500 page pork-laden bills, I believe the line item veto would be a useful tool for the president to have.  I respect Professor Rowley’s arguments against it, however, and am thankful for this forum in which we can discuss policy options in a civil and respectful manner.  Thank you also to Professor Rowley for your ongoing blog comments, and your reminder of the inspiration of George Washington, his crossing of the Delaware, and his appeal to the spirit of Americans!

Thank you to all of you for your well thought out blog comments! Each of you sheds a little more light on the issues at hand with the insights you share!

Good night and God Bless,

Cathy Gillespie

 

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