A Note on Vetoes

[Mark Graber]

An historical note on vetoes, which may be worth nothing.

1. The most sustained use of the veto as a policy instrument may be the use by Jacksonian presidents from 1832 to 1860 to prevent internal improvements and the national bank.  Who was right on this one is still a matter of historical controversy.

2. The most political controversial were Johnson's vetoes of Civil Rights measures.  Whether you should base anything on this might be called into doubt.  Johnson, after all, was an accidental president, who was actually of a different political party.  This is, of course, a risk our system runs, but I would not base a constitution on this.

3. The executive veto has become far more prominent in the era of near permanent divided government.  For the most part during this period, Republicans and Democrats got about the same combined number of votes (if you add presidential and congressional votes--no doubt I am off by a percentage or two).

4. My sense of the universe is that the veto is another instrument that makes legislation more difficulty.  The best reason for bding opposed to the thing is that 21st century governments should be able to legislative more easily and more radically than can government in the United States.

Mark A. Graber



>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 12/22/07 5:24 PM >>>
Bobby asks a good question (of course).  It's true that I am somewhat
disdainful of the bona fides of the President because of the
circumstances of election through the electoral college--and I'm quite
willing to set aside, at least for the moment, Bush v. Gore in favor of
the more fundamental fact that we so regularly bring to the White House
presidents who lack demonstrable majority support.  (The clearest
examples in the post-War era are Nixon (1968) and Clinton (1992), both
of whom received approximately 43% of the popular vote.)  But even if
we're talking about people with majority support, and even if we
recognize the reality of the institutionalized presidency, it still
boils down to the fact that a single individual, self-described "Great
Decider" or not, can countermand the more-or-less deliberate judgment of
majorities, sometimes fairly hefty ones, of both the House and the
Senate.  Even if one admits, as I indeed emphasize, that each member of
Congress is quite parochial, because of constituency interests, I'm
willing to defend the proposition that bills that can pass both houses
are at least as likely to represent some (perhaps mythic "national
interest") as the views of a single individual.  Cass Sunstein's
forthcoming book discusses the virtues of group decisionmaking in the
context of the Concorcet theorem.  I know there are problems with the
direct analogy, but I'm tempted by the argument that even if the
President, for some reason or another, is likely to be wiser and more
discerning of the national interest than any given member of Congress,
it doesn't follow at all that the President, unless one imputes almost
literally God-like omnisceience, is likely to be wiser than the
collective wisdom of Congress.  
 
And, as I hope I've made clear, for all of my rantings about the
iniquities of the Bush Administration, my arguments are designed to
apply to future presidents, including ones that I like considerably
more.  I see no good reason why a President Obama or Clinton should be
able to countermand a Republican Congress, other than my own partisan
preferences, which isn't a good enough argument.  The only really
"principled" argument in favor of the policy-based veto (for we're not
talking right now about Constitution-based vetoes based on the
President's duty to enforce the Constitution) is a general aversion to
legislation and the belief that anything that lessens the amount of
legislation is a good thing, let the chips fall where they may.  I can
understand the argument, but I disagree with its premise.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Saturday, December 22, 2007 3:22 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Levinson on Bill Moyers' Journal


        When I first read the book I was skeptical about his argument
casting the presidential veto as undemocratic. Last night's interview
cured my skepticism to some degree.  I still have a question though: Is
Sandy's quarrel with the presidential veto based primarily on input
issues--how the president is selected--or output issues--how one person,
even a democratically accountable person (at least in his or her first
term) can overturn legislation or be "bought" by special interests? Or
both? Alternatively stated, if the electoral college was eliminated and
presidents were selected through direct elections, would that at least
reduce the undemocratic dimension surrounding the veto or is the bulk of
the argument against the veto about what the president does--however
elected--once office. 
 
Bobby
      
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
<http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor-In-Chief
http://www.essentiallycontestedamerica.org/



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