This week, President Biden announced via Twitter that he was vetoing his first bill as president. The 80-year-old revealed he was vetoing a bill passed largely by Republicans that would ban the government from considering factors such as climate change and potential lawsuits in making investments towards retirement plans.
However, what is the presidential veto and what is its history? This is a quick journey through the history of the president’s most assertive legislative power.
What Is A Veto?
A veto allows a president to overrule any bills that come to his desk. Having 10 days to decide on the fate of the bill, a veto would mean that the law does not take effect but is rather sent back to Congress. The term veto is Latin for “I forbid!”
Codified in Article I, Section 7 of the US Constitution, its position has been described by Professor Richard Neustadt as “separate institutions sharing powers”, allowing a sitting president to preside and have a say over legislative matters. The president must sign off on every bill before it enters law.
To prevent tyranny – one of the main aims of the Founding Fathers – the president’s veto can be overridden by Congress (more on that later).
Veto Types
There are a number of vetoes the US president can utilise in order to reject a bill.
Regular Veto
The most used veto is the regular veto in which the president refuses to place his signature on the measure. The bill will have already passed both the House of Representatives and the Senate with a majority vote. There have been over 1,500 regular vetoes.
Pocket Veto
A pocket veto is when a bill is killed off by the end of a Congressional session within the 10 days allocated to sign a bill into law.
Figures from The Presidency & Presidential Power by the political writer Anthony Bennett tells us that recent US presidents such as Jimmy Carter and Dwight Eisenhower made more pocket vetoes than regular vetoes, the latter of whom had over 100.
This is not as common as a regular veto although still comprises 40% of vetoes, according to the Congressional Research Service, as of 2019. The pocket veto cannot be overridden although the bill can be again passed through Congress at a later date.
Line-Item Veto
In 1996, Congress passed the Line-Item Veto Act which allowed the president to make alterations to bills rather than an outright veto. As much of an innovation as this might have been, it was short-lived. Sitting president Clinton praised the idea, stating it would ensure “national interests prevail over narrow interests” and save hundreds of millions of dollars. The idea had previously been proposed and supported by presidents such as Franklin D. Roosevelt and Ronald Reagan.
In the case Clinton v New York (1998), the Supreme Court ruled that the line-item veto was unconstitutional, gifting the executive more powers than granted in the Constitution.
In 2006, George W. Bush called for the reintroduction of a line-item veto.
Famous Presidential Vetoes
The presidential veto is often used to dismiss divisive legislation. Some of the vetoes used by presidents over the years have shaped America today, with some of the most important being:
- Comprehensive Child Development Act was vetoed in 1971 by Richard Nixon (making it harder for single, working mothers to allocate childcare; Nixon described the multi-billion-dollar bill as the “most radical piece of legislation” to ever pass his desk)
- Civil Rights Act was vetoed in 1990 by George H. W. Bush (making it harder for litigants in race or sex discrimination cases to win)
- Partial-Birth Abortion Act was vetoed in 1996 by Bill Clinton (rejecting legislation that would criminalise abortions after a set term limit)
- Iraq Withdrawal Act was vetoed in 2007 by George H. W. Bush (rejecting a bill that would provide Iraq War funding, well over $100 billion, if a withdrawal timetable was put in place)
Moreover, sometimes presidents can set the agenda by threatening to veto a bill on a particular subject. Obama, for example, stated that he was vetoing any bills relating to increased Iran sanctions and harsher immigration laws, serving to curtail Republican support for legislation on these matters. In 2023, Joe Biden used his State of the Union speech to proclaim that – in the aftermath of the overturning of Roe v Wade in 2022 – he would veto any Acts that would restrict access to abortion rights.
Famous Presidential Veto Overrides
Overrides of presidential vetoes are difficult to accomplish, considering that a 2/3 supermajority (of those present, as confirmed by a 1919 Supreme Court case) is needed in both chambers to override a veto. Depending on the Senate composition, the president’s popularity, and issue matter, however, Congress may be able to defeat a president’s veto.
- Immigration Act vetoed by Woodrow Wilson in 1917 but overridden by Congress (a bill banning Asian emigration to the USA, as well as other groups such as “idiots”, “paupers”, and “political radicals” amongst others)
- Labour Management Relations Act (Taft-Hartley Act) was vetoed by Harry Truman in 1947 but overridden by Congress (weakening trade unions through bans on solidarity and wildcat strikes amongst other things)
- War Powers Act vetoed by Richard Nixon in 1973 but overridden by Congress (limits the powers of the president to declare war without support from Congress)
- Freedom of Information Act was vetoed by Gerald Ford in 1974 but overridden by Congress (expanding the FOIA Act, giving the public greater access to governmental records)
Due to increasing partisanship and the tricky 2/3 supermajority in both chambers, recent figures from David Tuck in September 2022’s edition of Politics Review communicate that overrides are extremely rare at just 7%. Author Anthony Bennett notes how this is also down to the president’s unlikeliness to reject a bill with large bipartisan support in the first place.
Bills that are overturned need inter-party opposition. The two most recent overturns of presidential vetoes came after leading party members criticised the veto. After Barack Obama vetoed the 2016 Justice Against Sponsors of Terrorism Act (JASTA) – which would allow the families of 9/11 victims to sue Saudi Arabia for the nation’s involvement in the plot – his decision was criticised by many of his own party.
The New York Times notes how future Senator Minority/Majority Leader and joint creator of the bipartisan bill Chuck Schumer remarked the decision was “disappointing” and would be “swiftly and soundly overturned”, stating he wanted justice for his New York constituents whilst the White House was more concerned with diplomatic matters rather than traumatised, bereaving families. The Senate vote was indicative of the ‘Lame Duck’ president’s imperilled grasp of power; he lost 97 votes to one.
Meanwhile, December 2020 saw Donald Trump’s veto of the 2021 defence budget. In retaliation, a rare New Year’s Day session was established, in which Congress voted to override the veto. At the forefront of opposition to Trump’s decision was Senate Majority Leader Mitch McConnell who stated: “We’ve passed this legislation 59 years in a row. And one way or another, we’re going to complete the 60th annual NDAA and pass it into law before this Congress concludes on Sunday.”
The $740 billion bill passed, with many of the biggest Republican names in Congress voting for the veto’s overturning, such as Ted Cruz, Marjorie Taylor Greene, and outspoken Trump critic and ex-presidential nominee Mitt Romney. After the opposition from his own party, Trump faced his first override in last the few weeks of his presidency.
Fast Facts
The First Veto
The very first presidential veto came in April 1792 under the first president of the United States, George Washington.
This veto was used on the Apportionment Act of 1792, with Washington believing the Act would give unfair representation to the northern states. After consulting with a number of fellow politicians, he was persuaded by Thomas Jefferson and Edmund Randolph to veto the bill, with Randolph describing it as “repugnant to the spirit of the Constitution.” Washington vetoed on the grounds that the Act may be unconstitutional under Article One, Clause 3, which states that “the number of Representatives shall not exceed one for every thirty thousand.”
A similar bill with slight alterations managed to pass shortly thereafter and become law within the same month.
The First Override
Over five decades after the first veto, Congress successfully moved to its first override.
This took place during the presidency of John Tyler. An interesting albeit forgotten president, Tyler had a jeopardised reign, facing Cabinet resignations and even being expelled from his own party by fellow Whigs.
In 1845, Congress overrode John Tyler’s veto in a historic first. According to Derek Miller in his book Vetoing Bills, this implemented a “minor bill concerned with business contracts for building naval ships.” The Senate voted 41-1 in favour of overturning the veto whilst the House voted 127-30, passing the required supermajority in a bill which limited the presidential power over Congress.
The Most Vetoes
Perhaps suitably, the US’s longest-serving president was the one to use the veto the most times. Indeed, Franklin D. Roosevelt has the most vetoes in US history, having presided over domestic and international crises from the Great Depression to the Spanish Civil War to the Dust Bowl to continued tenuous relations with the Soviet Union to the Second World War.
FDR executed 635 vetoes during his 12-year presidency from 1933-1945, comprised of 372 regular vetoes and 263 pocket vetoes. The amount of 635 vetoes is equivalent to vetoing one bill every seven days. Of these, only nine (1.4%) were overridden.
Moreover, the Encyclopedia Britannica notes: “FDR became the first president to personally read a veto message aloud to a joint session of Congress, thus demonstrating his desire to let his vigilance over Congress’s actions be known to its members.”
The Least Vetoes
Seven presidents never used their veto powers during their stint in office.
Of varying popularity and times served, John Adams, Thomas Jefferson, John Quincy Adams, William Henry Harrison, Zachary Taylor, Millard Fillmore, and James A. Garfield never used their veto powers. The latter of these, Garfield, even had a dog named Veto in a not-so-subtle notice to Congress that an undesirable bill could go straight to the doghouse.
George W. Bush made history when he did not use his veto during his first term 2001-2005, only using it after over 2,000 days in office. Part of the reasoning for Bush’s lack of vetoes during his first term was his control of Congress even after the 2002 Midterms. Comparatively, Biden used his first this week after 789 days into his tenure, just a few days longer than Donald Trump. Biden too had a relatively successful first Midterms, able to hold the Senate.
When Bush did use his veto powers, during his second term, he issued 12 regular vetoes, of which 1/3 (four) were overridden.
The Most Overrides
The most overrides belongs to Andrew Johnson. Often regarded as the worst president of all time, Johnson led the USA in the post-Civil War years – a questionable, at best, choice considering he had a penchant for slavery and was a white supremacist. The National Constitution Center notes how he remarked in 1866: “This is a country for white men, and by God, as long as I am President, it shall be a government for white men.”
During his tenure, Johnson issued 29 vetoes, 15 (52%) of which were overridden. Amongst the most important overrides were that the affirmation of Nebraska into the Union and the Civil Rights Act of 1866.
He became the first president to go through the process of impeachment when, in 1868, he narrowly escaped being impeached by one vote.
The Vetoes Fate: A Modern Decline?
CNN has labelled the presidential veto “an endangered species” due to its fall into disuse in the modern era.
Although the average number of vetoes stands at 60, perhaps overemphasised by the role of veto-friendly presidents such as FDR and Grover Cleveland, Obama only had 1/5 of this (12) whilst Trump had 1/6 (10) – although it should be noted that Obama did serve an extra term compared to his successor.
To question why the veto has fallen, perhaps the most simple explanation is that Congress simply does not pass as many laws. Simon Lemieux notes how only 2-3% of bills become law in the modern day, a fall from 8-9% in the 1980s. A contributor to this is the increasing polarisation in American politics today. A report from the Brennan Center notes how the 110th Senate (2007-2009) passed a record low 2.8% of bills, a 66% decrease from 2005-2006 and a 90% decrease from 1955-1956.
Even control of both chambers does is no way guarantee of passing wanted legislation (although the vice-president has a vote in case of a tie), just look at the 2017 failure of repeals of Obamacare to pass the Senate, losing 51-49 after a dramatic vote against the move by John McCain. Ironically, it was also McCain who said about the modern Congress: “We are getting nothing, my friends. We are getting nothing done.”
In an increasingly partisan time for politics, Steven Smith, a political scientist at Washington University notes that “many of the partisan, controversial measures die in the Senate before they can be sent to the president for signature or veto.”
However, despite a sharp decline in vetoes, approximately the same proportion of vetoes are overridden. 7% on average are overridden, figures compatible with Trump’s 10% override rate and Obama’s 8%.
The Filibuster: The Congressman’s Veto
Another useful tool has developed in the last few decades which has allowed the lawmaking in Congress to effectively veto bills: the filibuster
The filibuster allows Congressmen to speak at extensive length on legislation, until the time designated for debate concludes, blocking a measure as it has run out of time for a debate. The bill is therefore forcibly dropped. Not codified in any major US document and first used in 1837, it has become a powerful tool to block legislation passing Congress, never even reaching the president’s desk.
In the last few decades, the number of filibusters has grown exponentially. While Eisenhower only faced two filibusters, Obama faced 506, 252 of which were in 2013-2014.
The filibuster effectively allows the Congressmen to become the president, able to shut down a bill before it becomes law. A 60-vote cloture is needed to end a filibuster, so as long as a Senator has 40 allies – very likely, especially if on a party political matter – a bill is more or less doomed to fail.
Bills Blocked By The Filibuster
Due to the ease of a filibuster to prevent the wishes of an elected party, it has faced across-the-board opposition, including from presidents Biden, Trump, and Obama, the latter of whom stated: “And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”
Obama is there referring to how the filibuster has often been used in an oppressive way by the minority to dictate over the majority. This is most prevalent in the case of civil rights bills. As noted by the Senate’s own website, it was “particularly useful to southern Senators who sought to block civil rights legislation.”
(Photo courtesy of McClatchy Washington Bureau)
Most infamously, the segregationist Strom Thurmond – described by New Yorker writer Jelani Cobb as “dynamically racist” – opposed both the 1957 and 1964 Civil Rights Acts. Whilst his filibusters failed, his legacy has never recovered after taking such bigoted actions. In 1957, Thurmond committed the longest uninterrupted filibuster in US history, staying on the Senate floor for over 24 hours to argue against the bill. Thurmond even kept a bucket nearby to relieve himself and subsisted with throat lozenges, and malted milk tablets. In the end, the president signed the bills into law but southern Senators had done their best to execute the closest they had to a presidential veto.
According to Gregory Koger, writer of Filibustering: A Political History of Obstruction in the House and Senate, northern senators “claimed they didn’t understand the intensity of southerners’ opposition to the bill.”
Going back a few decades, southern senators filibustered many other bills that would have given some liberalisation to African-Americans. In 1922, they filibustered the Dyer Anti-Lynching Bill despite large-scale support, with the National Association for the Advancement of Colored People (NAACP) printing a full-page ad in The New York Times in November of that year. The 1942 Anti-Poll Tax Bill was also filibustered, with a bill to eliminate a voting tax that disproportionately impacted black voters being filibustered; continued attempts throughout the decade were also blocked.
Another notable filibuster was that of a 1970 amendment to abolish the Electoral College. Although passing the House with flying colours (338-70) and reform was supported by 80% of Americans who believed in a system of directing electing their president according to a 1968 Gallup poll, the amendment stalled after southern Senators’ intervention; the Electoral College is still the system in place 50 years later.
In the modern day, filibusters have been used to delay hugely significant and impactful bills. The Development, Relief, and Education for Alien Minors (DREAM) Act has been killed off many times over the years with members unable to reach cloture whilst a 2014 filibuster terminated plans for a federal minimum wage.
Perhaps the most famous filibuster in modern times came in 2013 when Republican Rand Paul spoke for nearly 13 hours to voice his opposition and concern over President Obama’s appointment of John Brennan as CIA Director. He started at midday and ended at shortly after half-past midnight, raising concerns about Obama’s capacity for domestic strikes, with Rand advocating against killing US citizens on American soil. A few years later in 2015, he committed to another lengthy filibuster, lasting over 10 hours in an extended spiel against the modifications to the Patriot Act in 2015, during which he asked “Are we going to accept [this] without any debate?”
(Photo courtesy of New York Magazine)
Another notorious filibuster came from conservative Ted Cruz’s opposition to Obamacare, in which he randomly read from Dr Seuss’s Green Eggs and Ham to fill time.
Although unpopular amongst presidents and considered to be a contributing factor to Congress’s perceived incompetence and inefficient nature (far from the heroic filibuster depicted in popular culture such as Jimmy Stewart’s character in Mr Smith Goes To Hollywood), it has been an effective tool for Congress to reject the legislation. It is, therefore, a reasonable argument for the decline of the veto as the legislation likely to be rejected by the president is now shut down by Congress in a targeted way that is the Congressman’s equivalent of a veto.
Epilogue
With such a storied history, it will be interesting to see how Biden makes use of his executive privilege over the veto during the rest of his presidency, however long it turns out to be.
