The Power To Veto: Who Decides?

In the United States, the President has the power to veto a bill passed by Congress to prevent it from becoming a law. The President must return the bill to the Chamber in which it originated within ten days (excluding Sundays) of when the bill is presented to them. If the President fails to sign a bill within ten days of enactment, the bill automatically becomes law unless Congress adjourns before the ten days elapse, in which case the President can use a pocket veto. All state and territorial governors have similar veto powers, as do some mayors and county executives.

The President's veto power

The Supreme Court has explained that the Constitution's veto provisions serve two functions. Firstly, they ensure that the President has a suitable opportunity to consider the bills presented to him. Secondly, they ensure that Congress has a suitable opportunity to consider his objections to bills and, on such consideration, to pass them over his veto provided there are the requisite votes. The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum. After a bill becomes law, the President has no authority to repeal it.

In 1929, in The Pocket Veto Case, the Court held that the President could not return a bill to the Senate, where it originated, when Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President. The Court declined to limit the word adjournment to final adjournments, instead reading it as referring to any occasion on which a house of Congress is not in session. In 1938, in Wright v. United States, the Court held that the President's return of a bill to the Secretary of the Senate on the tenth day after presentment, during a three-day adjournment by the originating Chamber only, was an effective return. The Court reasoned that the pocket veto clause referred to an adjournment of the Congress, and here only the Senate, the originating body, had adjourned. The President could return the bill to the originating Chamber while it was in an intrasession adjournment because there was no practical difficulty in making the return.

Congress can override a veto

Article I, section 7 of the US Constitution grants the President the authority to veto legislation passed by Congress. This authority is one of the most significant tools the President can use to prevent the passage of legislation. The President has 10 days (excluding Sundays) to act on legislation, or it automatically becomes law.

There are two types of vetoes: the "regular veto" and the "pocket veto." With a regular veto, the President returns the unsigned legislation to the originating house of Congress within 10 days, usually with a memorandum of disapproval or a "veto message." Congress can override the President's decision if it musters the necessary two-thirds vote of each house. The first successful congressional override occurred on March 3, 1845, when Congress overrode President John Tyler's veto.

A pocket veto is an absolute veto that cannot be overridden. The veto becomes effective when the President fails to sign a bill after Congress has adjourned, and Congress is unable to override the veto. If the President blocks legislation by pocket veto, Congress must reintroduce the bill and enact it again. The first President to use the pocket veto was James Madison in 1812.

The Presentment Clause allows the President to veto legislation, preventing it from taking effect unless two-thirds of both the House and Senate vote to override the veto. Once a bill becomes law, the President has no authority to repeal it.

State and territorial governors' veto power

State and territorial governors in the US have the power to veto state bills. All 50 state governors have this power, with North Carolina being the last state to grant this authority to its governor in 1996. Governors of the five permanently inhabited US territories, including Guam, the Commonwealth of the Northern Mariana Islands (CNMI), Puerto Rico, American Samoa, and the United States Virgin Islands (USVI), also possess at least a package veto and a line-item veto.

The governor's veto power varies across states and territories. In some states, the governor has additional veto powers, such as line-item, amendatory, and reduction vetoes. A line-item veto allows governors to remove specific items or appropriations from a bill while approving the rest. A package veto, also known as a total veto, enables governors to reject an entire bill. Governors can also exercise a pocket veto, where they prevent a bill from becoming law by declining to sign it.

The conditions and limitations on a governor's veto power can differ. In some states, the legislature can override a gubernatorial veto by a two-thirds vote, a three-fifths vote, or even a simple majority vote. For example, in Alabama, Indiana, Kentucky, and Tennessee, a simple majority vote can override the governor's veto. In contrast, Arkansas requires an absolute majority to override a gubernatorial veto.

The governor's veto power is an essential aspect of their role as the chief executive and commander-in-chief of their state or territory. It allows them to shape and influence legislation, ensuring it aligns with their policies and priorities. Governors also have other significant powers, such as proposing and signing laws, issuing executive orders, and appointing state court judges and department heads.

Tribal governments' veto power

The United States Constitution mentions Native American tribes three times, and the US recognizes 574 tribal nations, 229 of which are in Alaska. While tribal sovereignty is dependent on, and subordinate to, the federal government, tribal nations possess inherent power over their internal affairs, and civil authority over non-members on fee-simple lands within its reservation when their "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

The constitutions of many Native American tribes contain an executive veto power over bills passed by the tribal council. For example, in the Navajo Nation government, the president has a package veto power as well as a line-item veto for budgetary matters. The line-item veto cannot be overridden, under the terms of a 2009 referendum. The package veto was notably used by President Kelsey Begaye in 2001 to force a compromise on a law that allowed gaming on Navajo Nation land, after the council failed to override the veto.

Additionally, some tribal constitutions adopted under the Indian Reorganization Act of 1934 give the Secretary of the Interior a veto power over tribal legislation. The Nisqually Indian Tribe of the Nisqually Reservation constitution grants a secretarial veto over all ordinances issued under its police power. This has sometimes caused difficulties for tribal governments. From 1975 to 2021, the "Morton memorandum" directed all BIA superintendents and area directors to disapprove any tribal legislation regulating water use on Indian reservations that required secretarial approval under tribal law.

Legislative veto

A legislative veto is a provision that allows a congressional resolution to nullify a rulemaking or other action taken by an executive agency. In other words, it allows Congress to override, through a simple majority vote, individual actions taken by the President.

The legislative veto was a feature of dozens of statutes enacted by the United States federal government between approximately 1930 and 1980. It was first authorized by the Legislative Appropriations Act in 1932 and was used by state governments as well. The legislative veto took several forms. Some laws established a veto procedure that required a simple resolution passed by a majority vote of one chamber of Congress. Other laws required a concurrent resolution passed by both the House and the Senate. Some statutes made the veto process more challenging by requiring a majority vote of the entire legislative body, while some authorized one or more Congressional committees to exercise the veto on behalf of Congress.

The legislative veto was declared unconstitutional by the Supreme Court in INS v. Chadha (1983). The Court ruled that a one-house veto over an action of the Executive Branch is unconstitutional because it does not meet the constitutional requirements of bicameralism and the presentment provisions of Clauses 2 and 3 of Section 7. The Court's decision effectively ended the use of the legislative veto at the federal level, but it continues to be used in some state governments.

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