The right of the president to veto bills passed by majorities of the legislative branch is enshrined in the constitutions of most presidential systems. Not all such constitutions, however, require a super-majority to override, as is the case in the USA.

With the sudden rediscovery by President Bush of the veto pen that his predecessor must have hidden deep within the Oval Office desk drawer, it is worth asking why the veto? Why should one man or woman have the right to block a bill passed by a majority of the people’s elected representatives, and in the US case, also a majority of senators?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, that is what Bush has done with his veto of the stem-cell research bill. This bill was passed by about 55% of the House and 63% of the Senate, including in both cases substantial minorities of the party holding the majority of seats and the presidency itself. That is, it was a broadly approved piece of national policy, opposed by a minority. The presidential veto, in this case, allowed the president to enforce the will of an ideological minority that could not prevail in either chamber of the legislature. Such an outcome could not happen in a parliamentary democracy, or in a presidential democracy in which the veto is only a delaying measure (i.e. where it can be overridden by a majority).

In its political consequences, the veto thus empowers one branch over the other inasmuch as the legislative majority is prevented from being sovereign over policy. The executive branch is made into an addtional quasi-legislative branch consisting of one “legislator.” From a democratic (or for that matter, republican) perspective, turning the president into an additional legislative chamber can be tolerated if the legislature is so structured as to fail to represent popular majorities, but the presidency is so elected as to be representative of such majorities.

For instance, a legislature that is highly malapportioned and/or elected without significant national parties to structure national policy debate may pass legislation that is a logroll of favors for special regional and group interests. In such a context, a presidency elected by a majority (or close to it) of the national electorate can prevent the legislature from passing such bills. (Whether the result is just bigger logrolls to overcome the veto or legislation that is more national in scope is a separate question; it is likely to be more “national” to the extent that a nationally accountable president’s preferences must be taken into account.*)

Clearly, the US congress has elements of the logrolling minority-protecting type I just sketched. The Senate is highly malapportioned (an idea, by the way, that Madison fought against until it became clear that the small states would rather break up the US confederation than accede to the democratic two-chamber legislature he was proposing). The House, although not especially malapportioned, is much more localized in its election process than those of most other “advanced” democracies, and our parties are far less programmatic and cohesive than those of most other democracies.

If Bush had vetoed any of the many pork-laden or budget-busting bills that this congress has sent his way since he became president, he could have been said to have been defending “national” priorities against special-interest logrolls. This is the normative political justification for the veto that most coincides with the institutional one that the founders recognized: The president is responsible for the overall execution of national policy and is empowered to defend his prerogatives against legislative encroachments–such as raiding the national treasury for particularistic purposes.

In fact, it was just for such a purpose that Madison, when he was President, issued a veto in March, 1817:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses…”

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers…

I am not aware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the national prosperity.

Needless to say, the bill on which Bush issued his first veto is neither a claim on the treasury for local interest nor an overreach of the legislature’s constitutional prerogatives. In fact, the key passage of his short veto message is:

H.R. 810 would overturn my Administration’s balanced policy on embryonic stem cell research. If this bill were to become law, American taxpayers for the first time in our history would be compelled to fund the deliberate destruction of human embryos. Crossing this line would be a grave mistake and would needlessly encourage a conflict between science and ethics that can only do damage to both and harm our Nation as a whole.

[...]

I hold to the principle that we can harness the promise of technology without becoming slaves to technology and ensure that science serves the cause of humanity. If we are to find the right ways to advance ethical medical research, we must also be willing when necessary to reject the wrong ways. For that reason, I must veto this bill.

In other words, the president appeals to ethical and scientific issues that were debated in Congress, and in which his opinions on the matter were defeated. The reference to “my Administration’s policy” may sound like a defense of institutional prerogatives, but inasmuch as it refers to an executive order, it is trumped by legislation. Or it would be so trumped if the president were not empowered to protect his executive order from an attempt by a two-house majority of the elected Representatives and Senators to legislate an alternative policy course preferred by majorities of citizens. (The parties’ respective electorates have polarized somewhat on this issue in recent years, thereby increasing the size of the ideological minority that the veto catered to. Nonetheless, it is still a minority view that Bush’s veto has protected.)

By this veto, Bush has protected an ideological minority against the greater majority–a majority that happens to be bipartisan in nature.

This episode is a good argument for abolishing the veto, or at least lowering the override threshold to a majority of each house (as is the case in some other presidential systems and a few US states).** The risk in doing so would be, of course, that it would make congressional logrolls easier to pass. The “fix” for that problem is changing legislative incentives, via electoral reform, but that is a topic that I have covered extensively in other plantings at F&V. The bottom line is that there is no way to endow the presidency with a veto to block pork and “raids on the treasury” without also allowing it to protect ideological minorities. And this president has shown throughout his presidency that he is unwilling to employ the anti-logroll veto, but he showed this week his willingness to employ the ideologue-protection veto.

* The veto would be even more likely to be “nationalizing” were the president directly elected, rather than by an electoral college. While I think the electoral college is a piece of the larger puzzle of presidential incentives in the USA, it is not clear to me how relevant it is to the specific case of this veto.