The authority to veto legislation is one power that is customarily found in the executive branch although it is by no means an executive power, strictly speaking. The king of Great Britain had formally been endowed with an absolute veto over acts of Parliament, and such a power allowed the king to participate in the legislative process in a meaningful way—to have a final say over which laws he would agree to execute. The state constitutions had not embraced this power in the unconditional form enjoyed by Britain’s king, but many had adopted a veto in a partial or qualified form: one that could be overturned by a supermajority within the respective state legislatures. Wilson explained in the Convention that the veto power was granted to the executive branch “for collateral purposes” other than the mere execution of laws, including: 1) protecting the prerogatives of the executive branch; 2) preventing unwise or unjust legislation; and 3) preventing excessive legislation. Just as the legislature was given the ability to review the executive’s exercise of his appointment power, so too the veto allows the executive to review the legislature’s exercise of the legislative power.
Madison had included a “council of revision” in the Virginia Plan. This council (consisting of “the Executive and a convenient number of the National Judiciary”) would be authorized to review all the acts of Congress (including any exercise of the proposed federal veto of state legislation). Any bill rejected by the council would have to be passed again by an unspecified proportion of legislators in each branch of Congress before it could become law. A similar form of the veto power was found in the New York Constitution, which formed a council of revision comprised of the chief executive and members of the judiciary. This body could review bills both before and after they were passed by New York’s legislature, and if they rejected a bill then it would take a two-thirds majority from both houses to pass it into law. But Madison would not get his way, and the Veto power was lodged solely in the hands of the executive.
The veto power was first discussed on June 4, and immediately Elbridge Gerry sought to defeat the council of revision by placing the veto power in the hands of the executive alone. Wilson and Hamilton, for their part, sought to make the veto power absolute—one that could not be overturned by any subsequent vote in Congress—notwithstanding whether it were exercised by the executive alone or whether he would be acting as part of a council. But many other delegates were aghast at the thought of giving to one man the absolute power to obstruct the will of a popularly elected legislature.
Madison suggested that if they could fix on the right proportion required to override a veto, then “it would answer the same purpose as an absolute negative.” After all, the executive could never get away with obstructing a law that had the unanimous support of the legislature, no matter what the Constitution said. “The king of Great Britain,” said Madison, “with all his splendid attributes, would not be able to withstand the unanimous and eager wishes of both Houses of Parliament.” And besides, it was unlikely that the people would accept such an absolute power in their chief executive. Other members argued that they never would have voted for a single person to fill the executive office if they had known that it would be endowed with such stupendous powers. Dire predictions of an impending American monarchy were foretold, and all ten states rejected the proposal for an absolute negative. It was then agreed, 8-to-2, to allow Congress to overrule a veto if they could muster a two-thirds majority in each House.
Although the Convention had shown a preference in its first week of deliberations for the veto formula that they would ultimately adopt in the Constitution, the question was reconsidered, debated, and altered on several occasions. A small but ardent minority was intent that the judiciary should be a part of the process.
Another idea that suffered from repeated death blows was the absolute veto. Hamilton and Wilson had failed spectacularly to gain the Convention’s support for the idea on June 4, but several members were unwilling to give up on that dream. Hamilton’s plan of June 18 had included an absolute veto, and George Read, Gouverneur Morris, and James Wilson tried to win support for the idea on August 7 and again on August 15. Wilson foretold that, without this power, the legislature would follow the example of Britain and devolve into a “pure and unmixed tyranny.” The other delegates were unconvinced that an absolute veto was the only power that could keep a republic from descending into tyranny, but the arguments convinced enough members that they should at least raise the proportion necessary to overturn a veto from two-thirds to three-fourths.
The delegates would later repent of that choice. On September 10, Randolph named the high bar for overturning the veto as among “his objections to the system.” On September 12, Hugh Williamson moved to reconsider the question. “He had, he remarked, himself proposed three fourths instead of two thirds; but he had since been convinced that the latter proportion was the best. The former puts too much in the power of the President.” Proponents for a stronger veto countered that this power had often proven ineffectual in the states when it could be overturned by a proportion that was too low. Madison pointed out that the threat of any executive abusing this power was not so great now as it had been when they first decided on three-fourths, since the election of the president had since become more popular and his term shorter than they had originally been contemplating. The two-thirds threshold was reinstated by a vote of 6-to-4.
The process by which the veto would be exercised had already been given specific shape in the Committee of Detail. It was their idea that a bill became law once the president signed it. They also chose to give the president a set number of days to return a bill (to the house that had originated it) when he opposed a bill. And they specified that his veto should include “his objections against” the law and also that these objections would be entered by Congress “at large on their Journal.” By requiring Congress to take note of the president’s objections to the bill before they voted again on the measure, the Committee deliberately chose to involve the president in the deliberations prior to lawmaking.
They gave this opportunity to the president once again with the introduction of the State of the Union address: “He shall, from time to time, give information to the legislature of the state of the Union. He may recommend to their consideration such measures as he shall judge necessary and expedient.” The only objection to the Committee’s wording came from Gouverneur Morris, who wanted to drop the wishy-washy wording that the president “may recommend” certain measures. By dropping “may” and replacing it with “and,” the Framers would “make it the duty of the President to recommend, and thence prevent umbrage or cavil at his doing it.” By doing so, they again deliberately chose to give the president a role in the lawmaking process that was more positive, though less binding, than an absolute veto.