Two hundred and twenty-three years ago today, on April 5, 1792, President George Washington vetoed a Congressional bill for the first time in American history. The bill was called the Apportionment Act of 1792, and it related to how seats were to be chosen for the House of Representatives. Being the very first exercise of the President’s veto power given in the new Constitution, Washington’s move was a controversial one, and one that he spent a long time discussing with the various members of his cabinet.
As you might imagine if you know anything about the Federalist period, two members of that cabinet–Thomas Jefferson, Secretary of State, and Alexander Hamilton, Secretary of the Treasury–were constantly at each other’s throats, and thus they disagreed on the bill. Jefferson thought it was unconstitutional. Hamilton thought it was perfectly fine. Washington took Jefferson’s side, one of the few times he did so on a major issue. He thought that the way the bill apportioned representatives was off, and would have favored the Northern states disproportionately. As is Congress’s prerogative under the Constitution, they tried to override the veto with a two-thirds vote, but fell short. Congress went back to the drawing board, redrafted the bill and sent a new one to Washington with the ratios fixed. He signed it on April 14.
Americans are pretty familiar with the veto power–it’s been used, to date, a total of 2,565 times in U.S. history–but one thing hasn’t changed much: when a President does issue a veto, it’s usually controversial. That said, the reasons why Presidents have vetoed bills, and how Congress and the public react to them, has changed a lot. In Washington’s time, and for many of the first Presidents, the reason they vetoed a bill was usually that they thought it was unconstitutional. Since the 1830s, however, the veto power has become less a Constitutional check and more of a policy tool. This is why its use remains controversial.
This famous political cartoon from 1832 depicts President Andrew Jackson as a “king,” primarily because of his unusual (for then) use of the veto.
To understand how this change occurred, you need to know a little about the history of the Supreme Court. In 1792, when Washington killed the first Apportionment Act, the function of the Supreme Court was a little unclear. It was never really spelled out in the Constitution what the Supreme Court actually did, and thus it was considered that the Court’s jurisdiction and cases were, with a few exceptions, subject to the will of Congress. That began to change in 1803, when John Marshall in the famous Marbury v. Madison case established the role of the Supreme Court to strike down unconstitutional laws. But wait…if it’s the role of the courts to strike down unconstitutional laws, doesn’t that make the veto superfluous? This is what many people thought; among the first six Presidents, Washington included, there were only 10 total vetoes.
Then Andrew Jackson came along. Probably the most famous veto in early American history was his diss, in 1832, of the act that would have reestablished the Bank of the United States. It was not unconstitutional; Jackson hated the idea of centrally-controlled banking, and especially hated the Bank of the United States. Jackson’s political enemies decried this use of the veto as “tyrannical” and unjust. Whatever the merits of the bank issue itself, though, critics of this use of the veto would have to put up and shut up: vetoes as policy tools had now arrived in the White House.
Grover Cleveland, who racked up an impressive number of vetoes, had a very particular reason for killing the sorts of bills Congress sent him in the late 1880s.
Since the 1830s, Presidents have had a love-hate relationship with the veto. The record-holder for vetoes is Franklin D. Roosevelt, who killed a staggering 635 pieces of legislation during his 12 years in office. Grover Cleveland is second with 414 bills. Cleveland’s case, however, is a bit unusual. Congress in the 1880s had developed a bad habit of passing private pension bills for individual Civil War soldiers–most of whom, conveniently, were cronies and campaign contributors of the Congressmen who proposed the bills. Cleveland sought to stop what he saw as a form of graft (which clearly it was), but Congress didn’t get the message; these spurious bills kept landing on his desk. He never relented. He was swimming against the tide in the very corrupt Gilded Age, but Cleveland was always a man of principle. Very few of these vetoes were ever overridden by Congress.
Another post-Civil War President, Andrew Johnson, had a different relationship with Congress. The fierce wrangling over Reconstruction between Johnson (a Democrat) and Congress (controlled by Republicans) led to a lot of vetoes, and a lot of overrides. Johnson vetoed 29 pieces of legislation, but had over half of them overridden. By the end of Johnson’s term, Congress overriding vetoes was a routine function, one that could be counted on with regularity. Eventually Congress tried to override Johnson personally. He was the first President to be impeached, in 1868, in part for violation of laws he’d vetoed that Congress reinstated by the override procedure. If you’re getting the impression that Johnson was stubborn, he clearly was.
What about modern times? For all the complaining that conservatives do about Barack Obama being a “tyrant” or an “out-of-control dictator,” he barely touches the veto pen at all. He’s done only 4 vetoes, compared to 12 for Bush II, 37 for Clinton, 44 for Bush I, and 78 for Ronald Reagan. Indeed, although Obama will certainly get a few more clangers sent to him by the Republican Congress in the time he has left, he’s on track to be the least-vetoey U.S. President in almost a century. The only other one who had less than 10 vetoes was Warren G. Harding, who left office (feet-first) in 1923.
Despite his many critics on the right claiming he’s a “tyrant,” Barack Obama is well on his way to setting a record for the fewest vetoes by a modern President.
One thing all Presidents wished they had was a line-item veto. That would enable him or her to strike out only specific parts of a bill instead of killing (or accepting) the whole thing. Only one President has ever enjoyed this rare privilege: Bill Clinton, who briefly had a line-item veto in the 1990s, conferred by an act of Congress, until the Supreme Court struck it down as unconstitutional. Along with abolishing the Electoral College, a line-item veto is the most-proposed technical fix to the Constitution. After 230 years of waiting, though, I doubt it’s ever going to happen, and maybe it shouldn’t.
The veto has its problems, for sure, and like anything else in the Constitution, it could easily be misused. But it’s clear that not only is it unlikely to change any time soon, the use of it is a large part of what defines the modern Presidency, and can play a key role in characterizing a President’s historical legacy. Sometimes the pen truly can be mightier than the sword.