The President's Veto Power

The United States is the world's most successful and longest running democracy. We can
attribute much of our success to the insight and vision demonstrated by the Framers of our
federal constitution. Our federal government is a unique system characterized by a bold
separation of powers and an intricate system of checks and balances. The separation of powers in
the three branches of government prevents any one branch from capturing an undue portion of
power. Reinforcing the separation of powers is a system of checks and balances empowering
each branch to defend itself against encroachments by another.

For example, Congress may check the President with the threat (or, in extreme cases, the actual
use) of the impeachment power. Congress keeps the judiciary in line through its plenary power to
control the jurisdiction of the federal courts. The judiciary similarly exercises authority over both
Congress and the President through its power to invalidate laws or executive actions. The
President influences the federal courts through his power (with the advice and consent of the
Senate) to appoint federal judges. Additionally, one of the President's main defensive weapons
against an overbearing Congress is his qualified power to veto legislation.

Court cases involving these checks and balances can arise out of rather mundane circumstances.
Few cases, however, are more important, since a decision in such a case can have a radical
impact on the structure of our government. For example, the United States Supreme Court
recently decided the case of a young alien whom the government decided to deport because his
visitor's visa had expired. Deportation is a relatively routine matter. But this man's case led to the
landmark decision in INS v. Chadha, which outlawed the onehouse legislative veto. That
decision not only upset a long-standing congressional practice, it also cast doubt upon the
validity of at least two hundred acts of Congress.

The court on which I sit, the Court of Appeals for the District of Columbia Circuit, has often
been the preliminary arbiter of disputes involving these checks and balances. Just last spring, our
court decided a case concerning the parameters of the President's veto power. In Barnes v.
Kline,3 we examined thle scope of the pocket veto in a suit brought by several members of the
House of Representatives and joined by the Senate as a body.
In Chadha, the Supreme Court focused on one of the most vital aspects of the separation of
powers-the division of legislative power between the Congress and the President. This division
of power is crucial to any analysis of the presidential veto. The President's explicit role in
lawmaking is embodied in the veto power. Yet despite its lengthy exposition in the Constitution,
the Framer's attempt to set out the limits of the veto power was incomplete. The scope of the veto
is crucial to us as citizens, because every corner of our daily routine is touched by at least one
aspect of federal legislation.

This Article is divided into four parts. In the first section, I review the history and debate
surrounding the design of the veto clauses. This history is interesting in and of itself; it also
illuminates several contemporary (and unresolved) disputes about the proper scope of the
presidential veto. The second section highlights the role the veto has played in the development
of our political and legal history. This examination of prominent vetoes demonstrates that the
veto is an instrument of conflict that focuses public debate, increases political accountability, and
checks congressional overreaching. The third section reviews the contemporary debate over the
proper scope of the veto power. Can the President veto a bill for any reason whatsoever? Can the
President lawfully exercise a line-item veto? These questions are at the core of the veto's role in
our separation of powers scheme. The analysis of these questions reveals the sensitive political,
policy, and legal underpinnings of the veto power. Finally, the last section examines the pocket
veto, its evolution in the courts, and the importance of the court's decisions as examples of
enlightened constitutional decision making.

THE HISTORY OF THE PRESIDENT'S VETO POWER

The Early English Rule

Despite its apparent success in our system of checks and balances, Americans cannot claim
credit for inventing the veto power. While its early roots can be found in ancient Rome,' the veto
power embodied in our Constitution originated in England. Through the seventeenth century, the
King had plenary power over all aspects of the British government. The King's power, however,
soon began to rapidly erode. Parliament no longer served as merely an advisory body that
rubber-stamped the King's edicts. Indeed, by the late 1600s, Parliament began drafting laws for
the King's assent rather than vice versa. This turnaround had slowly evolved over the centuries.
The King, of course, had the power to withhold approval, but even this negative power was quite
weak. Royal assent was rarely refused in the early 1700s, at least as to domestic laws. Clearly,
the King's veto power had declined. In fact, commentators stated that the King "would not veto
even a bill calling for his own execution."' British lawmaking followed a dramatically different
course in the American colonies. For the colonies, the governmental model of early England still
applied-rule by total monarchy. Even in the 1700s, the King retained plenary power to establish
colonies. The King thus appointed colonial governors, who could veto any measure put forth by
the legislature. Moreover, the King could veto a measure even after approval by the colonial
governor. Whenever it was to the advantage of the crown, the King's veto power was used quite
freely in the colonies. This free use of the veto power incensed the colonists. The explosiveness
of this issue is amply evidenced by the fact that it is listed as one of the reasons for revolution in
the first sentence of the Declaration of Independence: "[The King] has refused his assent to laws
most wholesome and necessary for the public good.

The Constitutional Convention

After the break with England, the colonists steadfastly avoided creating a government with a
powerful executive department because the experience with the King was still fresh in their
minds. This weakened the newly-founded central government, and was the principal contributor
to the short life of the Articles of Confederation. Six years after ratification of the Articles, the
states met in Philadelphia to construct a new government with sufficient power to bind the states
to a fruitful new union. The Framers envisioned a strong central government, but they had also
learned their lesson under the British reign. A strong central government could unify the states
into a powerful single entity, but could also overpower the states as members of the new union.
The Framers thus took care, in designing this new government, to incorporate the positive
aspects of centralized government and to avoid those aspects that had caused the colonists to
break away from the British.

The Framers did not incorporate the modern version of the veto power into the federal
constitution without hesitation or experimentation. The Framers well remembered their feelings
about the King's absolute veto. But participants in the Constitutional Convention feared that the
legislative branch could dominate the other branches of the new government, thus rendering their
desire to observe a separation of powers a nullity. The veto was, therefore, designed as a limit on
congressional power to encroach on the rightful territories of the executive and the judiciary.
Despite seemingly widespread agreement on the separation of powers theory, the Framers
heatedly debated the appropriate design and scope of the veto. The first proposal envisioned a
council of revision, comprised of the President and federal judges, empowered to review
legislation."' The council was thought to be necessary because the President would never have
the political power to oppose Congress alone. Thus, a veto in the hands of both the President and
members of the federal judiciary would prevent congressional domination of the fledgling
government. James Madison persuasively argued to his colleagues in Philadelphia that the
council was a desirable veto format. He felt that without judicial participation in the veto power,
the President alone would lack sufficient firmness to resist legislative encroachment. Madison
played down the potential for judicial conflict, arguing that the advantage of firm opposition to
an overreaching legislature outweighed any perceived disadvantages even if a law that the
council had previously debated should later come before one of its judges.

Opponents objected to the plan on the ground that the judiciary was already sufficiently equipped
to defend itself through judicial review. If the law unconstitutionally encroached on the power of
the judiciary, the courts could simply declare it unconstitutional. Indeed, in some opponents'
views this ability of judges to review laws again after consideration by the council gave the
judiciary too much power. A judge, as a member of the council, could reject a law and, if
unsuccessful, he could do so again when the law came before his court. At least one
conventioneer thought that the council of revision would encourage judges to "seduce" the
President; the chief executive could be more impartial acting alone. Moreover, the council of
revision would permit judges to evaluate not just the constitutionality, but also the wisdom of a
law-a duty "foreign to their office.' Some opponents of the council of revision concentrated on
the bias and conflict issue: putting judges on such a council would result in impermissible bias
should the law later come before them in court."6 As the great jurist Joseph Story later wrote:

it would have a tendency to take from the judges a public confidence in their impartiality,
independence, and integrity which seems indispensable to the due administration of public
justice. Whatever has a tendency to create suspicion or provoke jealousy is mischievous to the
judicial department. Judges should not only be pure, but believed to be so.

Based upon these opposing arguments, the council of revision proposal was eventually defeated.
Before final agreement on the version we now enjoy, the Convention also rejected an absolute
veto--one that cannot be overriden. The absolute veto was seen as vesting too much power in the
executive. The Framers feared a reenactment of the Pennsylvania experience, where the governor
was reputed to have engaged in a practice of not signing bills into law unless each was
accompanied by an appropriation bill designating money for the governor's personal use.
Moreover, some of the drafters saw an absolute veto as somehow unseemly. It allowed one man
to reverse "the cool and decided opinions of the legislature." Indeed, the Framers thought that an
absolute veto was "obnoxious to the temper of the country.

The Federalists and the Antifederalists

After rejecting both the council of revision and the absolute veto, the Convention agreed on a
qualified veto-a -veto subject to a supermajority override. The constitution still needed to pass
muster with the American people, and in that forum, the federalists and the antifederalists
squared off.

The federalists were represented by James Madison and Alexander Hamilton, two formidable
supporters of the proposed constitution. Madison wrote in the Federalist Papers that the new
constitution truly incorporated the principle of separation of powers by arming each branch with
weapons capable of keeping the other branches at bay. Anticipating the objection that the veto
power combined legislative power (as opposed to separating it), Madison also wrote that the
separation of powers did not mean that the new government's separate branches "ought to
have. . . no controul over the acts of each other." Rather, the separation of powers means that, for
instance, the whole of the legislative power cannot be "exercised by the same hands which
posses the whole power of another department. This restriction was faithfully observed in the
proposed constitution. The hands that hold the executive power cannot make a law, though they
can reject a law the legislature proposes. Rather than violating separation of powers principles,
Madison viewed the veto power as a weapon capable of "keeping each [branch] in their proper
places. "The great security against a gradual concentration of the several powers in the same
department, consists in giving those who administer each department, the necessary
constitutional means, and personal motives, to resist the encroachments of the others."" Madison
felt that although the constitution itself commanded a separation of the branches, these weapons
were necessary because, in his words, "If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal controuls would be necessary. . . .
[B]ut experience has taught mankind the necessity of auxiliary precautions.

Alexander Hamilton followed up on Madison's defense of the veto by arguing that the veto also
served the salutary purpose of preventing unwise laws. The President could use the veto to block
laws precipitiously enacted in the heat of factionalism. The people would be protected against
abuse of this power because the President would rarely hazard a test of power with the Congress
if not backed by the popular will. This was especially so when the veto could be overridden by
the Congress. When the President vetoes an act, he risks public political rejection by Congress.
Hamilton apparently feared that this political risk would unacceptably diminish the use of the
veto.

These eloquent federalist defenses of the new constitution were met head-on by antifederalist
essays attacking the document. The antifederalists feared an unchecked accumulation of power
in the executive office, and the veto was seen as one manifestation of that central problem. One
antifederalist thought that when armed with veto power, the President was essentially a king in
all but name only. Another antifederalist author attacked the veto power as a violation of the
separation of powers. "It is ...a political error of the greatest magnitude," he wrote, "to allow the
executive power a negative, or in fact any kind of control over the proceedings of the legislature.

The antifederalists maintained their opposition to the veto despite the fact that the Framers
designed the veto power to avoid precisely the same evil in the legislative branch. Because they
viewed the office of the President as a serious danger to the freedom of the American people, the
antifederalists derided the position, describing it as "chief magistrate and generalissimo,"
"dictator,""1 and "emperor." The thrust of the antifederalists objections are well captured in the
following passage of the self-styled Impartial Examiner: "When the spirit of America becomes
such, as to ascribe to their president all those extraordinary qualities, which the subjects of kingly
governments ascribe to their princes: then, it is presumed, and not till then, he may consistently
be invested with a power similar to theirs."' The federalists, however, carried the day, and the
Constitution was approved in June of 1788.
THE EARLY EVOLUTION OF THE VETO POWER

The Initial Uses of the Veto

Almost immediately after the first elections, President Washington vetoed an act of Congress. In
November of 1791, Congress passed an act apportioning representatives among the states based
on the census of 1790. Following the constitutional provision, the act provided for one
representative for each thirty thousand persons in the state. The House had trouble deciding how
to treat states with populations not evenly divisible by thirty thousand. In response, the Senate
adopted an amendment giving representation to these remainders when in excess of 1 5,000. In
solving that problem, however, the Senate inadvertantly created another.

President Washington vetoed the act, declaring it unconstitutional. He asserted two grounds for
his position. First, the Constitution specifically limited representatives to no more than one per
thirty thousand persons. The Senate's remainder provision, however, effectively gave eight states
more than the constitutional limit. Second, Washington objected to the act because the
Constitution required apportionment of the representatives among the states by their respective
numbers. Because some states were awarded extra representatives under the remainder
provision, they had more than their proportionate share.

Apparently, the veto was well received. Washington had articulated his reasons for the veto, and
they were persuasive. Congress responded by passing a bill that allotted one representative for
each thirty-three thousand persons, thus removing the possible constitutional infirmity. The veto
remained largely untapped through the Adams and Jefferson presidencies, but President Madison
renewed its use. Madison vetoed seven bills, two by pocket veto 8 k-the first use of that power.
Madison's vetoes were largely based on the purported unconstitutionality of the legislation. For
example, he vetoed a bill designed to incorporate a church in the District of Columbia because he
believed the law violated the Establishment Clause. He also vetoed a bill giving land and a
building to a Baptist Church in Mississippi on the same ground.

In a veto with a more lasting practical effect on the daily lives of American citizens of that time,
Madison refused his assent to a bill authorizing financing for internal improvements-roads,
bridges, canals-because he felt it was passed without the authority of any enumerated power
declared in the Constitution. Madison had proposed in the Constitutional Convention a specific
power for Congress to incorporate banks and canal and road companies, but it was rejected.
Moreover, as President, Thomas Jefferson could generate no action from Congress on a
constitutional amendment to allow road building and other internal improvements. After the War
of 1812, it became clear to Washington politicians that internal improve ments were needed.
Congress relied on the General Welfare Clause for its authority to pass the internal
improvements bill that Madison eventually vetoed. Many members of Congress objected to
Madison's narrow construction of the enumerated powers, but they were unable to muster
enough votes for an override."

The potential of the veto as a political weapon did not become apparent until the election of
Andrew Jackson in 1828. Jackson received a tremendous popular vote, and he soon realized that
if he could exploit this popular mandate, his vetoes would be more likely to stand. This approach
hit the country on a grand scale with Jackson's veto of the bill to renew the Second Bank of the
United States. In 1811, the charter of the First Bank of the United States expired. Congress did
not renew the charter, because the public widely opposed the Bank's deflationary policies. But
the War of 1812 followed, and a reconstruction of the country could not proceed efficiently
without the financial control of a bank. So Congress chartered the Second Bank of the United
States in 1816. Its charter was to run for twenty years, but by the beginning of Andrew Jackson's
tenure in 1829, the Bank had again become extremely unpopular. Many citizens complained that
the Bank had engaged in a widespread practice of foreclosing on western land. As a President
particularly attuned to the wishes of the voters, Jackson knew that a renewal of the charter would
be political trouble.

Bank. Jackson vetoed the bill on the ground that the Bank was unconstitutional, despite the
Supreme Court's decision upholding the First Bank of the United States in McCulloch v.
Maryland. In Jackson's view, the three branches of the federal government were coequal to the
task of assessing the constitutionality of government actions.

Jackson was not alone in this view: President Martin Van Buren later argued that if the President
had no power to assess the constitutionality of laws, he would be a "ministerial officer only."
Thomas Jefferson had earlier taken the position that "each department is truly independent of the
others and has an equal right to decide for itself what is the meaning of the Constitution in cases
submitted to its action." President Lincoln attacked the Dred Scott"2 decision on much the same
ground.

Congress lashed out at Jackson's veto. It seemed a direct challenge to the Supreme Court's power
to declare what the law is, especially in cases requiring constitutional interpretation. For Senator
Daniel Webster, the Supreme Court's decision on the constitutionality of the First Bank was
conclusive; he stated, "One bank is as constitutional as another bank.

At any rate, Congress did not override the President's veto and Jackson was reelected, both
events vindicating at least the popularity of his position on the Bank. The issue was not settled,
however, because Jackson used every power he had to interfere with the Bank's remaining four
years. For example, he directed the Secretary of the Treasury to withdraw all federal funds from
the Second Bank, hoping to cripple it fatally. This was done under authority of a statute giving
the Secretary some discretionary powers, despite the fact that Congress had specifically refused
to enact a law authorizing the Secretary to withdraw funds. Congress' reaction is perhaps best
captured by Senator Henry Clay's response to Jackson's actions:

We are in the midst of a revolution rapidly tending toward a total change of the pure republican
character of our government, and to the concentration of all power in the hands of one man. The
powers of Congress are para- lyzed, except when in conformity with his will, by frequent and
extraordinary exercise of the executive veto, not anticipated by the founders of our constitution
and not practiced by any predecessors of the Chief Magistrate.

Although President Jackson won that battle, the conflict between Congress and the presidency
raged on. President Tyler's veto of a tariff bill led to the first move in our history to impeach a
president, ostensibly on a ground strikingly similar to one of the motivations behind the
Declaration of Independence: the "high crime and misdemeanor of withholding assent to laws
indispensable to the just operation of the government.

1867: The Tenure of Office Act

Congressional frustration over presidential vetoes reached its zenith during Andrew Johnson's
tenure. President Johnson and Congress tangled repeatedly over the proper course of
reconstruction after the Civil War. Johnson, a Tennesseean, favored leniency toward the southern
states, while Congress was bent on strict measures designed to assure no further uprisings. This
conflict led to continued attempts by Congress and the President to block each other's programs.
In the end, Congress proved more powerful, overriding more than fifty percent of Johnson's
vetoes.

One episode is particularly interesting. In an attempt to limit President Johnson's powers,

Congress passed the Tenure of Office Act, which blocked the President from removing certain
officers of the United States without the assent of the Senate. Appointment to, or acceptance of,
an office contrary to the Act was declared a "high misdemeanor." The purpose of the Act is
clear-the language used is precisely the formulation in the Constitution's impeachment provision.
While the Constitution is silent on the matter, Johnson was sure that the Act unconstitutionally
infringed on the executive office, and he vetoed it. Congress promptly overrode the veto.

But that was not the end of the matter. As it happened, Johnson was convinced that one of his
cabinet officers had to be removed anyway. During a recess of the Senate, Johnson suspended
Secretary of War Edwin Stanton, a holdover from President Lincoln's Cabinet. Johnson found
that Stanton, who was sympathetic to congressional reconstruction plans, had obstructed the
administration and disclosed political secrets to Johnson's enemies. When the Senate reconvened,
it rejected the removal. The President removed Stanton anyway, and appointed a replacement,
Adjutant General Thomas. Stanton refused to give up the office, and Thomas was arrested for
violating the Act. However, Congress soon realized that a trial of Thomas would play right into
the President's hands, since Thomas would defend on the ground that the act was
unconstitutional. Hence, the prosecution was quickly dropped, and Johnson was impeached by
the House instead.

During the impeachment trial, the prosecution argued that the President's sole duty is to execute
duly passed laws, not to decide the constitutionality of laws. Johnson, of course, defended on the
ground that the power of removal was constitutionally vested in the President alone, and any act
of Congress purporting to change that arrangement was void. Ultimately, Johnson was acquitted,
thus setting a precedent against impeachment for political reasons. Johnson's victory, however,
was narrow: his conviction failed by one vote.

This episode demonstrates the sometimes volatile relations between the coordinate branches of
our government. The veto power in some ways encourages confrontation between the executive
and the legislature, and this conflict has a salutary affect on our system of government. It keeps
the political branches accountable to their popular mandates and to the Constitution. Our
constitutional system is based on a healthy public debate and a tension between the separate
branches.

The Johnson impeachment also demonstrates the evolution of the veto. Jackson vetoed the bank
bill ostensibly because he thought it unconstitutional. Later, Johnson clashed with Congress more
on policy grounds. This shift in the battleground of disputes from the Constitution to policy is
due to a change in the nature of our governing law. Prior to the 1850s, the main disputes on the
veto centered around the Constitution. After the Civil War, however, we became more a nation
of statutes, and the veto correspondingly shifted focus from the constitutionality to the
expediency of legislation.

This policy-oriented shift culminated with Franklin Roosevelt's presidency. He vetoed 635 bills,
over one quarter of the presidential vetoes in our first 200 years. In fact, Roosevelt seems to be a
recordholder of sorts. Apparently, no legislation escaped his watchful eye. Among his vetoes
were bills relating to: Memorial Day observance, credit for beer wholesalers, control of funerals,
exemption of religious periodicals, cemetary approaches, shorthand reporting, and even homing
pigeons and parking meters.

THE UNCERTAIN SCOPE OF THE VETO POWER

The President's Proper Role in Lawmaking

Despite over 200 years of vetoes, the precise scope of the veto power is still unclear. Politicians,
responding to their ideologies and political challenges, have taken opposing positions on this
issue throughout our history: Thomas Jefferson felt that the veto power was solely a shield
against congressional encroachment on the executive. Jefferson would have deferred to Congress
even on a bill that he thought was arguably unconstitutional. Alexander Hamilton took the
opposite view; a bill objectionable on any ground was subject to a veto. The pendulum has
swung back and forth on this issue throughout our short history as the tides of power have ebbed
and flowed.

In the early 1970s, the restrictive view of the veto power had much currency. The Nixon
Administration was seen as pushing executive power to its limit, inspiring political scientists to
analyze the "Imperial Presidency. President Ford systematically stymied congressional economic
initiatives. Many scholars saw the veto power as an instrumental factor in an alarming expansion
of presidential power. Whereas the Framers envisioned congressional encroachment on a weak
executive, the 1970s produced the opposite fear. Professor Charles Black, analyzing the use of
the veto during these times, asserted that the veto power was designed solely to prevent clearly
unconstitutional acts and to protect the executive from legislative encroachment. Another
commentator went further, claiming that all Presidents since Andrew Jackson had used the veto
power beyond its constitutional bounds.

But it is not clear that even a purposeful, systematic veto program, designed solely to effect a
single policy, would be outside the Framers' intent. For example, despite the fact that the
paragraphs describing the veto power are among the longest in the Constitution, there are no
words limiting the veto to legislation encroaching on the executive office or to blatantly
unconstitutional acts. In fact, if the veto power were limited to unconstitutional acts, the choice
of words in the Constitution might seem a little odd. The Constitution directs the President to
sign a bill "if he approve[s] . . ." of it. If the President's function were merely to validate the
constitutionality of legislation, the Framers probably would have made a different word choice.
Approval connotes active policy agreement, rather than condemnation.

Admittedly, the Framers probably did not anticipate the veto as a systematic weapon in day-to-
day policy struggles between the President and Congress. But this may be true only because the
Framers did not envision the eventual size and pervasiveness of the federal government. The
early veto battles centered on the constitutionality of legislation and the confines of that forum
excluded major policy battles. Today, the boundaries of general federal power are less undefined
and the concomitant flood of admittedly constitutional legislation has changed the very nature of
the federal government. For example, on a single day, in 1866, Congress sent President
Cleveland 240 private bills granting federal pensions to specified individuals.

Moreover, proponents of a limited presidential veto must confront historical evidence suggesting
a broad veto power. During the Convention, the Framers more than once discussed the veto as a
protec- tion against improvident legislation. Alexander Hamilton described the veto in the
Federalist Papers as "not only . . . a shield to the executive, but. . . an additional security against
the enaction of improper laws." This view is also supported by the early vetoes. President
Washington vetoed a bill because of poor draftsmanship.82 Poorly drafted laws are not
necessarily unconstitutional now, and probably would not have been invalid in the 1790s. In fact,
over the first twenty-eight years of our republic, spanning seven administrations, only one of
seven vetoes supports the encroachment theory. Adding strength to these arguments, the
Supreme Court has recently spoken in favor of the wider view.

There are also persuasive policy reasons for viewing the veto power as a broad tool of
presidential review. At the Constitutional Convention, the Framers discussed and designed the
veto as an integral component in our separation of powers scheme. But to be an effective check
on the federal legislature, the veto need not and should not be limited to bills encroaching on the
executive realm. The legislative branch can overreach without encroaching on the executive.
Members of Congress often produce legislation that is the result of pressure employed by special
interest groups. Indeed, while the legislative process is a model of compromise, the final product
may be nothing more than an aggregation of narrow, special-interest proposals. There is nothing
pejorative in this characterization of our representative democracy. Even the Framers recognized
that laws could be enacted in the heat of factionalism. It is both appropriate and desirable that
interest groups have access to our lawmakers.

The presidency can be characterized in a similar fashion. All elective officials must necessarily
be responsive to interest groups in today's political environment. But the President represents a
more national voter constituency, as compared to a single legislator. A presidential veto can
moderate legislation for the national good, or skew legislation toward the President's personal
agenda. Each of these results is desirable. Since the veto clearly contemplates presidential
participation in the difficult task of legislating, there is no good reason why the President should
don blinders and ignore the full range of his policy, and even political, interests.

A narrow view of the veto power eschews this role for the President somewhat, resting his policy
choices instead on execution of the laws. Admittedly, even if the President's role is only to
execute the laws faithfully, there is considerable latitude for implementing a political agenda.

But if the President is a representative of all the people, there is no reason to limit his powers to
respond to his constituency, at least in the absence of a clear, constitutional mandate to do so.
There is certainly no express limitation on the veto power along the lines that Professor Black
suggests. Indeed, "the most defective part of the Constitution beyond all question, is that which
relates to the executive department. It is impossible to read that instrument without being
forcibly struck with the loose and unguarded terms in which the powers and duties of the
President are pointed out.

Of course, it is important to recognize that a broad veto power enables a recalcitrant President to
interfere with positive congressional programs. We often view the legislative branch as
responsible for designing comprehensive solutions to our nation's problems. Without the support
of the President, however, Congress' task can be far more difficult. The potential of a subsequent
veto can bog down legislation in Congress, and an actual veto is difficult to overcome. From
1789 to 1976, only ninety-two out of 2360 presidential vetoes were eventually overridden.

While these points most assuredly complicate Congress' task, they are necessary by-products of
our political structure and are clearly contemplated by the Constitution. The fact that the
President is often supported on veto overrides by his own political party (thus explaining the low
override rate) does not cast his veto in a dark light. Rather it validates the political, and possibly
popular, acceptance of his position. Moreover, when Congress is populated by a majority of
members of the opposite party, it is not defenseless against a systematic use of the veto. At some
point, the President's reliance on a negative power in the face of continued congressional
initiatives will produce untoward political consequences for the executive. Additionally, the
President must work with Congress if he is to achieve his own agenda. Thus, Congress can use
its role in other lawmaking to force a President to moderate particular vetoes, just as a President
uses his vetoes to moderate Congress.

The Line-Item Veto

Perhaps one of the most hotly contested aspects of the veto power, even today, is the extent to
which the President may veto only part of a bill. The so-called "line-item" veto would allow the
President to sign one part of an act and veto another part simultaneously. This controversy is by
no means new. In 1830, President Jackson signed a bill and simultaneously sent a message to
Congress that essentially restricted the reach of the statute. In 1842, John Tyler followed
Jackson's precedent and also issued a message restricting the scope of an act he had signed. The
House protested, calling the message "a defacement of the public records and archives. In 1920,
President Wilson ignored one section of a merchant marine bill and refused to carry it out on the
ground that it was unconstitutional. More recently, President Nixon signed a military
authorization bill in 1971 but stated that he would treat one of the sections as invalid. That
section urged the President to set a final date for withdrawing American troops from Southeast
Asia. The President stated: "[That section] is without binding force or effect, and it does not
reflect my judgment about the way in which the war should be brought to an end. My signing of
the bill that contains this section, therefore, will not change the policies I have pursued. . . ."
President Ford followed Nixon's lead in a 1976 defense appropriations bill, stating he would treat
the disputed portion as a complete nullity.

As applied to appropriations bills, the line-item veto was until fairly recently an accepted, if not
acknowledged, practice. Prior to the Impoundment Control Act of 1974, appropriations were
generally considered permissive. Often in public works legislation, the President would choose
to carry out some projects and not others. After abuses that led to enactment of the Impoundment
Control Act, the President must follow strict procedures that call for either one- or two-house
approval if he desires to withhold money. INS v. Chadha, however, casts serious doubt upon the
validity of the Act.

A line-item veto statute for appropriations was recently pending in the Senate. The proposal was,
in fact, quite simple. The legislation would have required the Clerk of the House of
Representatives to divide up each numbered paragraph or item into a separate bill to be sent to
the White House. Thus, each separate paragraph would have become an individual bill subject to
an independent veto.

The text of the Constitution gives us little guidance on the constitutionality of such a measure.
The Constitution clearly speaks of approval or disapproval of a whole bill at once, not piecemeal
consideration of its parts. A change in "styling" may not be sufficient to overcome the
constitutional difficulties. The Veto Clause is one of the checks and balances in our system of
separation of powers. Any change in the nature or effect of the Clause will necessarily implicate
separation of powers concerns. These issues do not reside solely in academic playgrounds. They
have a very real effect on constitutional decisionmaking in the courts. As the Chadha case
teaches, the Supreme Court is very wary of fiddling with the constitutional balance struck
between Congress and the President. Chief Justice Burger made this very clear:

Explicit and unambiguous provisions of the Constitution prescribe and define the respective
functions of the Congress and of the Executive in the legislative process .... These provisions of
[Article] I are integral parts of the constitutional design for the separation of powers .... It
emerges clearly that the prescription for legislative action in Article I, [Sections] 1 [and] 7
represents the Framers' decision that the legislative power of the Federal Government be
exercised in accord with a single, finely wrought and exhaustively considered, procedure.

As Chadha shows, the Supreme Court has not hesitated to strike down schemes that interfere
with the spirit of separation of powers, even though no explicit textual limitation exists. In Myers
v. United States, for example, the Court rejected a statute that constrained the President's power
to remove certain executive officers. The Court ruled that the power of removal is an inherent
corollary to the power of appointment, at least in some cases. The Court based the ruling not on
the text of the Constitution, but rather on the nature of the executive power. The Myers approach
to the separation of powers issue is well established. Thus, the line-item veto will likely survive
constitutional scrutiny only if it retains the essence of legislative power in the Congress. This, of
course, is the nub of the problem.

Moreover, for constitutional purposes, it makes no constitutional difference that Congress may
agree to give up some power to the President in contrast to a presidential encroachment on
Congress' powers or vice versa. The separation of powers protects not the three branches of our
federal government but the people. The Framers designed the Constitution with three branches in
order to avoid an undue concentration of power in the hands of any single entity because
concentration of power was thought to lead to tyranny. For purposes of constitutional analysis, it
matters not how the power came into a single entity's hands. The Constitution is violated if a
single branch, through any means whatsoever, acquires more power than the Constitution gives
it.

The line-item veto can be viewed as just such a transference of power. When Congress
relinquishes its ability and duty to construct wholesale solutions to our nation's problems, the
Constitution's "finely wrought . . . procedure'' is at stake. Admittedly, when limited to the
appropriations context, the line-item veto does not conjure up visions of impending tyranny. But
it is a mistake to view appropriations as a different creature for constitutional purposes.
Designating appropriations is a key element of one of the gravest federal problems of recent
times-balancing the budget. Just as the Balanced Budget and Emergency Deficit Control Act of
1985110 (the "Gramm-Rudman-Hollings" Act) was a congressional attempt to solve this
problem, so are decisions on how to spread the wealth throughout the federal budget. Thus, the
line-item veto is better analyzed outside the appropriations context.

I do not intend to canvass entirely the legality of the line-item veto legislation. The arguments
have been well rehearsed elsewhere.,," For purposes of this Article, however, the line-item veto
legislation raises sharp separation of powers questions. Thus, it is important to explore briefly
what ramifications this legislation presents for the delicate balance of power between the
executive and legislative branches.

The obvious question raised by the line-item veto is whether it impermissibly transfers the
legislative power of article I into article II hands, thereby upsetting the constitutional scheme. At
the nub of this issue is a definition of the legislative power within the meaning of article I. Once
we have determined the kernel of legislative power, the issue of improper transfer follows more
easily.

Unfortunately, the Supreme Court has never conclusively treated the boundaries of article I vis-
a-vis article II. The Court came close, however, in The Steel Seizure Case."' When the Nation's
steel mills were struck in the midst of the Korean War, President Eisenhower ordered the
Secretary of Commerce to seize the mills. The President justified this action as imperative to
continue the war effort and incident to his powers as Commander-in-Chief. The Supreme Court
rejected the seizure, but the grounds for finding it illegal were varied. It appears that despite the
wide-ranging comments of several Justices on the limits of article II, the case was decided on a
narrower ground. At least four concurring Justices found the action illegal because Congress, in
legislating on labor problems, had expressly considered and rejected giving such a power to the
President. Since the Court would not construe the President's military powers to allow this kind
of domestic activity, the seizure was struck down. Narrowly construed, The Steel Seizure Case
only defines the presidential military power and the limit of implied presidential power in the
face of contrary congressional action."'

While The Steel Seizure Case restricts presidential power, it cannot be taken as a case delimiting
congressional power. There is some language arguably defining Congress' article I powers, but
the Court's main concern was the legality of the seizure-an executive action taken contrary to
admittedly valid congressional action. Justice Jackson's influential concurrence focuses entirely
on executive power in the face of congressional action. He defined three categories of analysis:
presidential action pursuant to congressional authorization, where presidential power is at its
height; presidential action in the absence of congressional action; and presidential action
incompatible with congressional will, where presidential power "is at its lowest ebb."

The line-item veto might at first glance seem to fall in the first of Justice Jackson's categories,
but further analysis demonstrates why The Steel Seizure Case does not provide a rule for
deciding the legality of the line-item veto. When the President acts pursuant to congressional
authorization, his power is at its zenith because he can rely on his own constitutional powers or
on powers granted him by Congress. As far as the line-item veto is concerned, however, no one
claims that Congress has granted the President inherent power to veto legislation paragraph by
paragraph, nor is such a delegation granted by article II. Such an interpretation of article II would
run contrary to the long-perceived understanding of article II. Thus, if Justice Jackson's
concurrence provides a relevant mode of analysis, presidential authority must emanate from the
line-item veto legislation itself. But the question presented by the line-item veto is not the
President's authority to execute the line-item veto law. Rather, the validity of the line-item veto
legislation itself is at stake. Presidential authority is augmented by legislation granting the
executive branch certain powers only when that enabling legislation is itself valid. That is the
question under consideration here. To sharpen the point somewhat, no one doubted in The Steel
Seizure Case that Congress had authority to enact the Taft-Hartley Act. In that act, several
Justices found that Congress had considered and rejected seizure as a remedy for labor strife.
With the line-item veto, we must overcome this initial question before reaching the issue of how
the legislation affects the President's powers.

Nonetheless, the above analysis does raise a related point on the power of Congress to delegate
authority to the President. Justice Jackson's concurrence merely states that a valid delegation
increases presidential power. In and of itself, this is hardly a startling conclusion. But the
delegation doctrine cases do provide arguable support for the validity of the line-item veto
legislation. Over the past fifty years, the Supreme Court has not struck down a single delegation
of lawmaking authority from Congress to the President. 20 While some commentators believe
that the prospect of the Court ever striking down a single delegation again is nil, there is a
smattering of support on the Court as well as among the academic community for the doctrine's
continued vitality.
The doctrine is relevant to the line-item veto because the delega- tion doctrine allows Congress
to pass some of its powers to the executive. At the outset, it is important to note that line-item
veto legis- lation is process-oriented, rather than outcome-oriented. It is undisputed that the
delegation doctrine does not allow Congress to delegate to the executive the authority to enact a
code of laws on a particular subject without at least an organic act that can be construed to
provide standards. Rather than a delegation of power to fill in the interstices of a law, such a
delegation would be an abdication of the lawmaking role. An accepted interpretation of the
Supreme Court's delegation cases requires Congress to set judicially enforceable standards
before it may delegate lawmaking authority to agencies. When such standards are explicitly
stated (or at least judi- cially inferable), Congress has in fact legislated, and the subsequent
delegation can be seen as a "necessary and proper" element of the legislative scheme. Moreover,
the agency's subsequent interpretation of the organic act can be seen as an execution of the laws
pursuant to article 11.

The line-item veto legislation stands on slightly different footing. The legislation is not
substantive; it is procedural. The procedure affected is the distribution of power between the
legislative and executive branches, as defined in article I and article II. The validity of the
delegation of power goes to the validity of the line-item veto leg- islation itself. If articles I and
II disable congressional action on the line-item veto, any presidential power exercised pursuant
to such a statute is a fortiori invalid. In the typical delegation cases, there is no question that
Congress can legislate in the area. Using the delegation doctrine to validate the line-item veto is
classic bootstrapping. Moreover, when put to this office, the delegation doctrine validates much
greater delegations than just the line-item veto. For example, under this theory Congress could
legally delegate the design and enforcement of all federal criminal statutes to the President with
merely an act that executes the delegation. Yet this is precisely the type of concentrated power
the Constitution sought to avoid by separating powers. Thus, it is clear that the delegation
doctrine has limits and cannot validate shifts in the Constitution's balance of power.

With this limitation in mind, however, it is clear that the delegation cases are still relevant. In a
sense, whenever the Supreme Court upholds a delegation, it upholds a shift in the lawmaking
power. Agency promulgated rules and regulations have the force of law, yet are not the direct
products of Congress. No theory can support this result without allowing some transference of
power. The Court has never held that such delegations transfer the legislative power, at .least as
defined by article 1.

The process/substance distinction may be sufficient to distinguish the delegation cases as

authority for the line-item veto. But, the delegation cases do admit of a continuum of delegations.
Perhaps where Congress has exercised the legislative power of article I on the substance of an
issue, delegations to fill in the gaps are necessary and proper and do not implicate the process of
legislating itself. But when a delegation of power directly implicates the constitutional balance of
power, the calculus has changed. As Chief Justice John Marshall wrote in 1825:

It will not be contended that Congress can delegate to the courts, or to any other tribunal, powers
which are strictly and exclusively legislative. But Congress may certainly delegate to others,
powers which the legislative may rightfully exercise itself .... The line has not been exactly
drawn which separates those important subjects, which must be entirely regulated by the
legislature itself, from those of less interest, in which a general provision may be made, and
power given to those who are to act under such general provisions to fill up the details.

Ultimately, courts must be wary of validating legislation that alters the internal dynamics of
Congress in a way that affects the balance of power between the executive and legislative
branches. It is one thing for Congress to decide, on an ad hoc basis, that legislation should be
subject to a line-item veto. The separation of powers issues are sharpened, however, when
Congress legislates line-item veto treatment for all bills. A particular instance of deference to the
President may be seen as a political decision; a legal rule of deference goes beyond the politics
of the moment and may change the balance of power for future generations.

My aim here is not to resolve these extremely difficult questions regarding the Constitution's
balance of power framework. These perplexing issues do no more than highlight the fundamental
role that the veto plays in the separation of powers. The fact that seemingly innocuous legislation
can raise such a constitutional storm shows that the subject of the legislation is sensitive and
important. The veto power is a key element in the separation of powers because it is an
instrument that one branch may use to check another. And such instruments are central to our
constitutional scheme. Only through the paradox of sharing and intersecting powers between
branches can we achieve the true aim of separated powers-the avoidance of concentrated powers.
Unfortunately, these intriguing questions may never be answered. The line-item veto bill is
currently bogged down in the Senate. It may not be these cosmetic questions of constitutional
interpretation that eventually sound the death knell for the line-item veto. If I have learned
anything in my more than twenty years in Washington, it is that politicians, like most people, are
loath to give up power once they have got it. Yet that is precisely what the line-item veto does; it
transfers power from Congress to the President.

THE POCKET VETO

No discussion of the veto power would be complete without mention of the pocket veto. Under
article I, if the President fails to return a bill within ten working days after presentment, the bill
becomes a law.132 That constitutional rule, however, also contains an exception. The bill does
not become a law if, in the language of the Constitution, "the Congress by their Adjournment
prevent its Return. This is the pocket veto, and it has significant practical impact on federal
legislation. Of the 2,360 vetoes between 1789 and 1976, 993 were pocket vetoes. This number is
significant because the pocket veto is an absolute veto. The bill is thus struck down permanently,
with no override opportunity. If the President wants to avoid a partisan political fight, or if the
President fears an override, a pocket veto presents a golden opportunity.

Last year in Barnes v. Kline, the court on which I sit decided a question concerning the pocket
veto. Congress had passed a bill that required the President to certify that El Salvador was
making significant efforts to curb human rights violations before he could send military
assistance to that nation. In November of 1983, on the final day of its first session, Congress
presented the bill to President Reagan. The President refused to sign it, and he argued that the
adjournment of Congress prevented the bill's return, making his action a valid pocket veto.

Representative Michael Barnes, joined by the Senate as a body, sued the President, arguing that
the intersession adjournment of Congress did not prevent the bill's return, and it thus became law
after ten working days. Our court agreed that the adjournment did not prevent the bill's return,
and that it did indeed become law. This decision was not without controversy; Judge Bork
dissented on the ground that none of the plaintiffs had standing.

The Barnes case espouses a mode of constitutional decisionmaking that I believe is the only way
to attack a sensitive issue of separation of powers. The problem that the Pocket Veto Clause
addresses is clear. Without such a clause, Congress could pass a multitude of bills at the end of a
session and send them all to the President. The President could not possibly review all of the bills
within ten days, and some would thus automatically become law. The Framers were careful not
to memorialize into the Constitution their particular vision of how Congress would operate. The
Clause states that a bill shall not become law if an adjournment prevents its return. It does not
say that a bill shall become law automatically if the Congress shall adjourn. Thus, the Framers
must have anticipated that some adjournments would not prevent a return, and left the finer
details to the courts.

The courts, in turn, have taken a practical view of what circumstances prevent a return, looking
to the realities of congressional and executive practice. In The Pocket Veto Case of 1929, the
Supreme Court tackled the Pocket Veto Clause for the first time. The Court considered a bill that
was presented to the President within ten days of the close of the first session of the 69th
Congress. The President neither signed it nor attempted to return it. The Court found the bill
validly pocket vetoed, since no Congress was in session to accept a return of the bill at the end of
the tenth day. The Court specifically rejected a theory that would have allowed an agent of the
Congress to accept the return, because there was apparently no such congressional practice, and
such an agent could conceivably hold the bill "for days, weeks or perhaps months, . . . keeping
the bill . . . in a state of suspended animation. The Court found that such uncertainties would be
unbearable.

Nine years later, in 1938, the Supreme Court decided Wright v. United States. In that case, the
Senate, which had originated the bill, broke for a three-day adjournment less than ten days after
the bill was presented to the President. During that break, the President returned the bill to the
Secretary of the Senate, who "was functioning and was able to receive, and did receive, the bill.
The Supreme Court found that the three-day adjournment did not prevent the bill's return, largely
because, in contrast to The Pocket Veto Case, there was no question that the bill would be in
purgatory for an indefinite period of time. The Wright decision reflected a practical construction
of the constitutional requirements in light of changing congressional practice.

Almost forty years later, our court wrote the next chapter in the history of the pocket veto. In
Kennedy v. Sampson, we ruled that a five-day adjournment of both houses was sufficient to
prevent return of a bill, especially when the Secretary of the Senate had been authorized to
receive veto messages from the President during the recess. The court, speaking through Judge
Tamm, noted that modern congressional practices presented neither of the operative hazards
recognized in The Pocket Veto Case: long delay and public uncertainty.

In the Barnes case, we faced a slight modification of these cases: a short intersession
adjournment. In modern times, intersession adjournments have averaged only four weeks.
Congressional staffs operate continuously during this time. Most importantly, congressional
officers are authorized to accept a veto message from the President. Thus, we concluded in
Barnes that such adjournments do not prevent a bill's return in the constitutional sense.

The significant lesson that these decisions teach is that constitutional interpretation adapts to
changes in society. After all, the Constitution is a living document and must be interpreted in
light of changed circumstances. Actions that produced unreasonable delay and uncertainty at the
time of The Pocket Veto Case, over fifty years ago, now appear perfectly acceptable. The
wisdom of this realistic approach to constitutional interpretation cannot be overstated. The
separation of powers should not rest solely on theoretical distinctions. It must also rest on the
practical, everyday effects of constitutional decisionmaking. Courts often decide cases in the
academic stratosphere without so much as a blink at reality. The cases I have just discussed are a
breath of fresh air on this score. In these cases, the courts have recognized the importance of
theoretical concerns, but have not subjugated the effects of the practical.

Nevertheless, one of the most difficult aspects of judging is reconciling the theoretical with the
practical. Striking a balance between interpreting the legal requirements of the Constitution
through theory and through practice is challenging and worrisome. The pocket veto cases
demonstrate that theory and practice can be coextensive. The line-item veto might not be
amendable to such a happy, or at least easy, resolution. A conflict between theory and practice
faced the Supreme Court in INS v. Chadha. There, the Court held that theory, which conflicted
with accepted practice, must prevail. Regardless of the merits of that particular decision, the
Supreme Court is surely right in refusing to subjugate theory to even a long-accepted practice.
For denigration of constitutional theory in favor of seemingly accepted practice is but the first
step down the road to unrestrained majority rule. Accepted practice is merely another name for
the current majority view. The Constitution commands us to reject those shifting majorities when
they transgress the ground rules of our society. There is always a danger, however, that the
positive will become the normative. Thus, judges must be careful to decide legal issues with an
eye toward the realities of our world, but, ultimately, guided by the aspirations of our world.

CONCLUSION

The veto is really but one single check in our separation of powers scheme. As an instrument of
conflict, it has many salutary effects on our political system: it focuses the public eye on disputes
between the executive and Congress; it provides a check on the legislature's tendency to
dominate our tripartite government; and it serves as a countervailing policy tool for the
President. The veto does not create conflict simply for conflict's sake. Disputes arising out of the
veto keep our government running on an even keel, even though the waters are sometimes rough.
For the most part, however, the veto power has admirably performed its function.

In a sense, the Veto Clauses are much like many other sections of the Constitution. They appear
simple on first impression, but deeper analysis reveals serious constitutional tensions. The Veto
Clauses make the President a partner in the legislative process. But the President also has the
undeniable duty to take care that the laws be executed, and to uphold the Constitution. These
responsibilities can conflict all at once, producing exceedingly difficult constitutional and
political questions. More frequently, the constitutional obligations harmonize, and our system
runs perfectly.

The point, however, is that we must always look at the Constitution as a whole to discern its
underlying purposes and the interrelationships of its various provisions. Indeed, this is one of the
most important aspects of mastering constitutional law. Each article, section, and clause is a
piece of the larger puzzle that is constitutional law. I hope that I have shown how one seemingly
simple provision, the veto power, has much deeper meaning for our constitutional system than
might first appear.