Chips and vetoes

As expected, Thursday the House of Representatives voted again, by a large majority, in favor the State Children’s Health Insurance Program. The vote was 273-156. That’s more that three-fifths of the House membership, and the vote included 44 members of the minority party.

In most democracies, such a vote, combined with the 69 votes the bill previously received in the Senate, would be sufficient to approve this bill and make it law. But not in the USA. Thursday’s vote was to attempt an override of President Bush’s earlier veto of the bill. And that, of course, requires two thirds of each house to succeed.

Americans take the veto for granted, and given how hard it is to amend the constitution, there is little chance it could be changed. But it might at least be a good lesson on democracy if we debated this question: Should we allow presidents a veto, subject to override only by a super-majority?

Few Americans would ever think to ask this question. That’s a shame. The ultimate answer might come down either way, but the important thing is to think about the consequences of institutions, and political settlements made over 200 years ago, and whether we might do better. Just over a month ago, it was Constitution Day, which marked the day, in 1787, of the final meeting of the Constitutional Convention in Philadelphia. There were some low-key celebrations of the event, but most of them were more about patting ourselves on the back that we have such a great Constitution. Few were about how we might make it better. We do have a great constitution. Yet we might make it better, more democratic. And the veto provision would be one good place to start.

We should not fear reform, or shrink from even “radical” ideas for improvement in our democracy. Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1810, and in words that are literally carved in stone in the Jefferson Memorial, said:

I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Even more, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders.

So, now that we have a veto of a bill to expand children’s health care, supported by wide bipartisan majorities in both houses, we should ask ourselves: Does the veto provision of the constitution still “go hand in hand with the progress of the human mind”?

Before answering that, we might want to go back and think about what the founders themselves felt about the veto. Why do we even have it?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, defend an ideological minority is just what Bush has done with this veto. In his veto message, he said:

This bill would shift SCHIP away from its original purpose and turn it into a program that would cover children from some families of four earning almost $83,000 a year. In addition, under this bill, government coverage would displace private health insurance for many children. […]

Because the Congress has chosen to send me a bill that moves our health care system in the wrong direction, I must veto it.

Maybe Bush has a point. Maybe this is a bad decision by Congress. If so, score one for Hamilton: The President has used his discretion to save us from moving policy in the “wrong direction.”

But, of course, all these issues were debated in Congress. And the President’s position was defeated. It obtained only around 40% of the votes.

Hamilton and Madison, in making the institutional logic for why the veto is in our constitution, did not contemplate the possibility that the President would simply represent another minority faction, and use his veto to enforce the will of that minority against the majority. (Madison did not even want a strong veto; he proposed a president elected by Congress and with no ability to block what a majority wanted. He also did not want a Senate as we know it. His so-called Virginia Plan was quite a radical, majority-rule document!)

Do we still want a veto? Maybe, maybe not. But we ought to at least be willing to ask the question! We should be willing to have a debate about how democratic our constitution’s lawmaking process is, and let the chips fall where they may.

____
Some of this planting draws on a similar critique of Bush’s first veto, of the stem-cell bill, in July, 2006. There, I contrast Bush’s veto message on that bill with one issued by Madison himself, when he was President. The difference are striking!

0 thoughts on “Chips and vetoes

  1. I think the 2/3rds should be reduced to 3/5 majority override. There are some states in this country that overriding the governor’s veto is a 3/5 majority vote.

    I don’t think there is nothing wrong with each state being representative equally with 2 senators each.

    The U.S Senate doesn’t have the power to introduce money or revenue bills. The only improvement I could see is that the U.S Senate doesn’t have the power to amend money bills and/or revenue bills. That would reduce pork barrel spending significantly or maybe somewhat.

  2. I’ll be ornery and offer an argument that giving a veto to an elected president can help protect both majority rule and minority interests:

    (1) Majority rule: Even with two houses, the combination of malapportionment (modest for the House, severe for the Senate) and gerrymandering in the strict sense (non-existent for the Senate but extensive for the House) means a bill could pass both Houses even without majority support among the populace. A Chief Exec elected by majority nationwide vote is a fallback against minority rule.

    (For the same reason, I believe that, if a State can’t manage to have its electoral districts drawn impartially by an independent body, they should be drawn by appointees of the Governor. If the redistricting process has to be under political control, better it be under the control of an official who is electorally accountable but can’t entrench h/self in office by rigging the boundaries; this avoids systematic frustration of the majority will [per Frankfurter J in the reapportionment cases] across a series of elections).

    (2) Minority interests (I don’t say “rights” here because these should be protected by the courts, not left to the political process). Some groups may be unlucky enough to be “bottled up” in electoral districts (or States) that are safe for one side. Even if it’s their own side, they can then be largely taken for granted. OTOH, a nationwide presidential race could turn on a few thousand votes, anywhere in the country. (Some have suggested that Al Gore lost in 2000 because of a few thousand Cuban-Americans in Florida angry over the Elian Gonzalez affair).

    Now, I acknowledge that the force of the above argument is diminished, in relation to the USA, by the fact of (a) the Electoral College, which can bring about a plurality defeat; and (b) midterm elections, which can mean the President, elected up to four years earlier, manifestly represents the General Will less accurately than Congress, elected at most only two years earlier. But it would be especially applicable to, say, France, especially with (a) Presidential terms reduced to 5 years (and by custom, nearly concurrent with the Assembly), (b) single-member districts for the Assembly, and (c) any moves (are there still any?) towards a Senate directly elected by PR from the Departments.

    (Well, why not also in a parliamentary system too? Good point, but those systems usually lack an official equipped ith the authority to wield a political veto; either the Head of State is not elected, or is elected without a partisan mandate to counter the lower House majority. Irish presidents who trid to use their constitutional semi-veto have ended up losing big-time, eg O Dalaigh in 1975. It won’t work unless the regime is at least semi-presidential, eg Portugal/ Finland. Ironically, France gives the President only a weak veto, overrideable by a “mere” absolute majority of the Parliament.)

  3. It strikes me the real problem in current US legislative procedure is the super-veto (also known as the signing statement) by which the executive has assumed a dispensing power not seen since James II and VII in Britain. Laws are laws. They apply as written or they are not laws. Unilateral presidential signing statements can be reviewed by no-one and overridden by no-one.

    One of the reasons for James’ deposition, and a clause of the Bill of Rights 1689 reads:

    By Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.

    The miracle is not that Bush vetoed, but why he bothered instead of just issuing the customary super-veto based on John Yoo’s attempt to revive the divine right of kings.

    If the veto was originally directed to constitutional, not policy issues, then it needs to be redefined in the manner of Section 79 of the South African constitution.

  4. Two problems with defending the veto solely, or primarily, as a way of defending the separation of powers:

    (a) Judicial review (not unthought-of, but not very well-thought-out, in 1787) is a better and more principled safeguard. If a lax or partisan President lets an unconstitutionally legislature-aggrandising bill go through to the keeper (do you chaps use that term in baseball, or is it only cricket?), a future President can’t undo it if the legislature presses its advantage. Whereas a court can strike down an unconstitutional Act years, even decades, after its passage (eg, INS v Chadha).

    (b) Most of the allegedly unconstitutional growth of the “Fourth Branch” – quasi-judicial regulatory commissions like the FCC and FEC, which exercise both adjudicatory and rule-making powers – occurred, as far as I know, with the acquiescence of Presidents. From memory, only a few of the Executive-restraining Acts were passed by 2/3 override of a Presidential veto – some of the post-Watergate reforms, and maybe the War Powers Resolution. (Yes, I know, not an “Act”, but).

    The problem is that organised parties muck up the Founders’ assumed Leg vs Exec dichotomy. While there are of course splits between, eg, Clinton or Carter (a fortiori LBJ) and the Congressional Democrats, and likewise Reagan and Bushes vs the GOP legislators, these splits are muted compared to the inter-party contest. A GOP President and Congressreps who foresees their party losing the White
    House for the next 8 or 12 years have every incentive to pass, and sign into law, an Act that says “the President may not appoint or remove Cabinet officers without the consent of 2/3 of each House” (to choose a patently unconstitutional hypothetical). What the President loses in insitutional leverage, s/he gains in party advantage.

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