This post is part of Fifty Shades of Republic, a series reviewing US political institutions at the state level
One of the most significant aspects of any presidential system is the extent of a president’s legislative power. Despite being known as the main example of a “separation of powers system”, few presidential systems really separate the classic “powers” (judicial, executive, and legislative) – instead, as Neustadt (1960) puts it in Presidential Power and the Modern Presidents, presidentialism typically creates a separation of offices which share powers.
The US constitution features a package veto subject to a two-thirds override. ‘Package’ means that when presented with a bill or resolution passed by Congress, the President can only agree to the proposal in full or veto it in full; by contrast, many presidents around the world, and governors of many US states, possess some version of an ‘amendatory’, ‘partial’, or ‘final offer’ veto. These give presidents more active power to intervene directly in the lawmaking process. In the case of a partial veto where the president can enact parts of an assembly bill directly into law (cutting through compromises agreed to in the legislature) are even arguably akin to decree powers in their scope for active lawmaking by the executive. By comparison, package vetoes are often described as a ‘reactive’ power.
In practice, however, the difference is not necessarily so clear-cut. As Moe & Howell (1999) argue, American presidents are able to engage in a great deal of unilateral policymaking (de facto lawmaking), and their ability to do so stems in large part from their supposedly ‘reactive’ veto power. Any actions (or rule-making) a president undertakes may be opposed by Congress, but any bill or resolution Congress passes to oppose presidential actions can be vetoed by the president. Given the two-thirds threshold, overrides are unlikely to be successful absent broad bipartisan support; the only remaining recourse is the courts. Executive orders are often portrayed as much more constrained than the decree powers available to other presidents (which are sometimes also formally limited to what existing legislation allows, e.g. Russia), but we should always keep in mind that such a distinction is only as good as its enforcement.
Presidential veto powers in the states
All US governors (who, as directly-elected chief executives which a fixed term, are presidents) currently possess a legislative veto. North Carolina used to be an exception, as its governor had no formal say over legislation until its constitution was amended to provide for one in 1996. All states have a package veto, which is subject to a varying override threshold:
- 37 states require a two-thirds vote to override (in 27 it’s 2/3 of the total membership, in 10 2/3 of those voting);
- 7 states require three-fifths (of the total membership in 6, of those voting in the remaining state);
- 6 states require an absolute majority vote (always a majority of the total membership).
Where the state legislature is bicameral, override votes require the threshold to be reached in each house separately, with the exception of Alaska, where override votes are held in a joint sitting of both houses.
Many state constitutions offer the legislature some possibility of referring bills to a referendum. In at least one state (Oregon) it is fairly clear this means the legislature can bypass a governor’s veto by submitting a proposal to referendum (the standard override procedure in Iceland and de facto in Weimar Germany). However, most constitutions I have looked through are not clear on this point, as their language on ‘referendum and initiative’, present in about half the states’ constitutions, is usually ambiguous and contradictory (often in the same ways, as many states copied each other’s provisions in the early 20th century). If anyone knows more, please let me know in the comments!
Partial and ‘final offer’ veto power
The vast majority of states (44) grant their governors a ‘line-item veto’ – the power to enact some appropriations proposed in a bill while disallowing others (indicated on a map with a dollar sign). In 12 of those the governor can also reduce appropriations without deleting them entirely (indicated with a minus before the dollar sign). In all states, the override threshold is the same for line-item vetoes as for regular package vetoes – with the exception of Illinois, where an absolute majority is sufficient compared with the usual three-fifths.
As far as I am able to tell, no governor has the power to partially enact any other type of bill. Some states’ constitutions also clearly limit the power of deletion to items which appropriate money. In some states where the provisions are more ambiguous they have sometimes been interpreted more broadly. Infamously (and apparently uniquely), Wisconsin governors for many years successfully exploited the ambiguities in their state’s constitution to stretch their veto authority. Governors would edit bills by deleting sentences, words, digits and even letters to enact completely new legislation, with sometimes very different effects from those intended by legislature. This was mainly done to appropriations, but often also in other policy areas, since any bill with at least one appropriation item counted as an “appropriation bill”. Successive Wisconsin Supreme Courts affirmed governors’ interpretations of the rules, and the state’s partial veto was trimmed only gradually through two constitutional amendments in 1990 and 2008, and last year by a Supreme Court ruling seeming to reverse course on its previous judgements on the topic.
6 states add another feature to their gubernatorial veto, commonly called an “amendatory veto” in US sources (hence it is indicated on the map with an A), although it is best understood as the ability for a president to present the legislature with ‘final offer’. It means that the president can return to the bill to the assembly with some proposed amendments – the assembly can then choose to accept the bill as amended (by regular majority/majorities), in which case the amended bill becomes law, or insist on its original version of the bill, which requires whatever the usual majority or supermajority for (package) veto override is. This ‘final offer’ feature is very common across Latin America (e.g. Colombia, Mexico, Peru).
Effectively, any assembly can accept a president’s conditions for approval, even when only the package veto is allowed. The amendatory or ‘final offer’ feature formalises this possibility, but effectively also simplifies the procedure to do so, which might otherwise require restarting consideration of the bill and having to pass all three readings again before being presented to the governor. Besides anything else, therefore, this feature makes the veto procedure more forgiving of any errors in communication between president and assembly.
Veto power regarding resolutions and ‘legislative vetoes’
As I suggested above, a president’s power relative to the assembly depends in large part on the ability to veto not just bills, but also resolutions (which may not count as a “bill” or proposed legislation), specifically ones meant to counter executive action. It may also mean that whenever the legislature delegates authority to the executive branch or the bureaucracy by statute, the majority party’s ability to review executive or administrative decisions will be be limited by the president’s ability to veto such review.
As with the referendum, this was difficult to figure out precisely from constitutional texts. However, this much is clear: many (perhaps most) state constitutions, like the federal constitution, explicitly state that resolutions can be vetoed. Some states (e.g. Louisiana, North Carolina, Montana), on the other hand, clearly place legislative resolutions outside the reach of a gubernatorial veto. Idaho was one state constitution where I was able to find more detail about legislative delegation: the legislature can reject administrative rules, an action not subject to the governor’s veto.
Now, I almost certainly missed more examples and relevant provisions, and moreover I suspect the reality on the ground may be at least as affected by statutes and judicial interpretation as by constitutional provisions. Again, if anyone knows more I would love to hear about it in the comments!
The ‘weak governor belt’
This post is already fairly long, so I will conclude with just one observation: there is a sizable share of the states where the governor is comparatively weak, since they cannot join with a minority in the legislature to block a bill. In most of these states (indicated on the map in yellow), the governor may use the line item veto to undo a compromise she disagrees with on appropriations, but in other areas, the governor’s veto will mostly serve as a test of the legislative coalition which passed the bill. If the coalition was fragile, or if its initial success owed too much to abstentions, the override may fail, but there is no need to appease a minority for an override to succeed. In principle, legislative deadlock cannot result from divided government between president and assembly, only from things internal to the assembly or its parties.
Interestingly, these ‘weak governor states’ happen to all border each other; moreover, most of the states with a 3/5-override veto border these states as well. I haven’t really looked into the history of this geographic pattern, so I don’t know if it was the result of some manner of institutional diffusion – maybe some of our readers know more.
At any rate, what is clear is that there is meaningful variation on this point within the United States (variation which often seems to go unnoticed – multiple articles I’ve seen about a veto override in Kentucky or Arkansas failed to mention that the override takes just a majority in these states). Looking to these states’ experience with executive overreach and other consequences of the usual veto power should provide fruitful for research, and would be easier for reformers to emulate than any foreign example.
 Courts which are appointed by the president. Democratic and Republican presidents may disagree on many things, but they all favour increasing presidential power, which influences their choice of judges.
 At least two states have an override threshold of three-quarters in a few selected areas: in Alaska this applies to money bills; in Arizona this applies to some specific cases (e.g. amendments to enacted popular initiatives, emergency bills, raising taxes) where the minimum requirement is already a two-thirds majority.
 Although the ruling’s ambiguity (caused by the multiple separate opinions offered) and its potentially partisan motivation (it has been a fairly conservative court, and the incumbent governor is a Democrat) suggest it may not be the last word on the matter.
 Though this ultimately depends on what kind of review the constitution allows the legislature to write into statute (or the judiciary’s interpretation of the constitution on this point – which in the case of the US federal government has certainly been very narrow).
This is pure speculation, but regarding the lower thresholds for overrides, most of the states listed (all except AR, MD, NE and RI) were part of either the colonies of Virginia or Carolina. And Carolina’s first English settlers came from Virginia, which had established its bicameral general assembly before those settlers left. (Of course, the colonies had the heavy hand of the King at that time, so it could just be a shared political culture that continued.) As you note, North Carolina has a very strong legislature (their council of state, including the governor, was selected by the GA until 1868), and VA does too, even today: judges and commissioners are all selected by the GA, and they frequently flex their muscle by not approving people the governor gave a recess appointment to.
An even greater speculation on my part, based on my lesser knowledge of that period (so some of this may be wrong), is a lot of anti-federalism came from these quarters. NC and RI both strongly opposed the Constitution, preferring the less centralized Articles of Confederation, and many of the top anti federalists (Henry, Mason, Monroe) came from Virginia. (To be fair, so did Madison.) I’m not sure if this transferred to opinions on state governments, but one could certainly see the logic.
The South had extraordinarily weak governors in the antebellum period–indirect election by the legislature, very short terms, easy impeachment, election of courts by the legislature, often no veto powers. Much of that was a strong culture of honour in which the governor was supposed to be first among equals and not act independently of the gentlemen (planters) around him. Oddly enough this culture also tended to make for relatively weak senates. Most Southern states followed Virginia, for example, in requiring that all bills originate in the assembly.
I was under the impression that election of executives by the legislature had largely been replaced by direct election in the Jacksonian era?
Date of first popular election of governor.
North Carolina 1836*
South Carolina 1865*
I’m happy to be corrected, but it looks to me like all 4 original states (asterisked) in the South had indirectly elected governors, but the dates they shifted to popular election —1824, 1836, 1851 and 1865—show no relationship to the Jacksonian period. It’s a common understanding that Jacksonian democracy led to democratisation of state government but it was a very, very uneven process.
South Carolina, unkindly described by some as too small for a republic but too large for an asylum, was the first state to secede and the last to adopt popular election of governors and presidential electors.
Congress seems to have been reluctant to admit new states with indirectly elected governors.
Alan, thanks for these dates. I don’t know what definition of the Jacksonian era you subscribe to, but most results off the top of a google search suggest 1824-1840, which includes most of the dates you cited.
At any rate, my comment was not so much about the Jacksonian period as a reaction to your claim about “antebellum” Southern constitutions, and the only state that didn’t shift to direct election before the Civil War was South Carolina (which doesn’t surprise me as it was also the last state legislature to pick presidential electors as well).
Jacksonian democracy has been shown by recent research to be much less decisive than was previously believed. Yes, the Jacksonians tended to expand the franchise to all white males, but they also devoted considerable energy to excluding African-Americans and Native Americans from voting. Throughout US history the right to vote has both expanded and contracted and that process has not yet ended.
In 1787 5 states allowed women to vote, at least in theory. They were invariably widows because they were the only women who could actually hold property. Widows are on record as definitely having voted in Massachusetts, New Jersey and New York. The NJ electoral law of 1793 even used the inclusive language ‘he or she’ when speaking about qualified voters. The widow franchise was abolished by 1806 with NJ the last state to abolish.
Northern states tended to allow African-Americans to vote if they met the property franchise. Both Northern and Southern states tended to allow propertied Native Americans to vote. The Jacksonians put a stop to both wherever they gained power.
The South was also the location for possibly the weirdest constitutional project of all time, the Fundamental Constitutions of Carolina 1669, largely authored by one J Locke.
Correct link is https://avalon.law.yale.edu/17th_century/nc05.asp
Is there a reason for veto powers for governors? Parliamentary democracies seem to get by with out it. I thought the North Carolina Governor didn’t have the power to Veto Laws. What do the other Latin American Presidentialist democracies do in terms of Veto Powers? Do they all have line item vetos as well?
The logic is that if you are going to have a chief executive who is an agent of the electorate rather than of the assembly, you want a way for the executive to be independent of the assembly in the process of crafting legislation. It is a would be a rather incoherent design to elect an executive independently but have the occupant of that office lack any independent authority beyond literally just executing laws passed by the assembly unilaterally. So nearly all (pure) presidential (or gubernatorial) constitutions grant some legislative powers, such as package veto (with more than simple-majority override), item veto, and/or decree powers.
Most parliamentary monarchies retained a royal veto, from which the US veto obviously derives, well into the XX century. George V, for example, believed he could still veto the Parliament Bill in 1911, even against ministerial advice.
Does the British monarchy have an absolute veto power?
Does the French President have the power to veto laws? Perhaps Not.
Can anyone think of any new variations of veto powers? I was thinking of a President/Governor using the veto powers to delay implementation of a bill for 6 months, the legislature can override it by 3/5 majority in the first three months and absolute majority for the last 3 months.
I really like the Alaskan joint sitting method of override of vetos. It is a pity Alaska uses the same electoral system for both chambers.
Could a Prime Minister or a President/Governor that is technically a Prime Minister or President/Governor that is elected by Parliament, but can’t be dismissed by Parliament have veto powers?
If a private members bill passed that the government didn’t like, the Prime Minister/Governor/President vetos it, what would happen?
I know South Africa and Botswana are good examples of this, but the ANC and BDP have not ever lost their majority, so we have no way to test this.
A majority passes a bill that the government who is a minority opposes, but then vetoing the law may get the opposition to dismiss the government. They could veto the law, then call for snap elections.
The British monarchy has much less power than Oprah, Harry and Meghan would have you believe. Royal powers exercised on ministerial advice are a different story.
Most semi-presidential systems, and some presidential systems, have a majority-override veto, so clearly there is an alternative logic out there.
Do any states have a pre-emptive veto like Australia, where money bills need to be recommended by the executive?
Not to my knowledge. While the idea that “money bills” must at least in theory originate in the lower house was carried over the Atlantic, the idea of an executive request before a bill could be debated was not.
I think a bunch of presidential and semi-presidential systems give executives pretty strong agenda control over things like the budget (e.g. France, Chile), so yes.
Yes, but in the French case, that budget power is in the hands of the cabinet. Of course, since the adoption of five-year terms and honeymoon elections, and the resulting strong pro-presidential tendency of the assembly, that isn’t as important a distinction as it sometimes was in the past.
Many Latin American constitutions–and I believe South Korea’s–give extraordinary agenda power to the presidency on matters of spending.
And then there’s the >a href=”https://docs.legis.wisconsin.gov/misc/lrb/reading_the_constitution/governors_partial_veto_5_3.pdf”>weirdness in Wisconsin where until 1990 the governor could veto individual words, letters, digits and punctuation marks. The current version is:
The veto power in the US is obviously derived from the royal assent in Britain, but Madison and his allies knew that royal assent had not been refused since 1707. There is some evidence they expected the veto to be used against unconstitutional laws, and there would be no point to a veto on unconstitutional laws if the legislature could override a veto by simple majority. The federal convention certainly thought that the legislature was the most powerful and therefore dangerous branch of government. The development of judicial review for unconstitutionality in Marbury v Madison made the constitutional veto redundant and thus the US veto developed into a policy veto while keeping the supermajority.
The authors of constitutions are generally given to shameless textual piracy. The US constitution begat the Australian constitution, and the Australian constitution in turn begat dozens of Commonwealth constitutions. Unlike the US, the Australian constitution and its descendants explicitly provide for judicial review of the constitutionality of legislation. While these constitutions retain assent to laws, there is no point to a supermajority when the Crown is required to act on advice. When, in 2019, the British and Australian parliaments both passed laws opposed by the cabinets there was some speculation that the cabinets would advise the Crown to refuse assent. Anne Twomey, and most constitutionals scholars argued that it would be unconstitutional for the cabinets to offer such advice and in fact neither did so and royal assent was granted in both cases.
The first wave of independence constitutions in the Commonwealth were all parliamentary followed the Australian language in providing for a royal assent that was never exercised. The exceptions tend to confirm the idea that the US veto was originally designed as a constitutional veto, not a policy veto. The independence cognition in Malaysia gave the hereditary rulers at federal and state level a non-overridable veto on issues related to the constitutional status of the rulers and the the position of Islam as a semi-state religion. The 1994 South African constitution gave the president both a constitutional veto and a power to refer bills to the courts for review on constitutional grounds. Non-ANC participants in the constitutional assembly trusted Nelson Mandela much more than they trusted the ANC. There’s also the question of the imperial veto in Commonwealth constitutions, but this already becoming a very long comment.
Almost all democracies provide for some form of royal or presidential assent. That can lad to dod situations like the Belgian king feeling unable to sign an abortion bill and having himself declared incompetent for 7 days so that someone else could sign it. Sweden has laws signed by the speaker instead of the king. That model works in Sweden but was a major cause of a serious constitutional crisis in PNG.
So yes, there is a logic to vetoes.
The requirement of a 2/3 (or, better, 3/5) majority to override an executive veto seems to me perhaps the only unobjectionable supermajority requirement that legislatures can be given. After all, a majority vote passed something, the receiver of another majority vote doesn’t like it, and this tie must be broken or the status quo ante will receive an unearned benefit. If there are to be vetoes at all, there’s no point requiring a second simple majority vote–what would that prove, other than that some representatives may not like to defy the President?
But…should there be vetoes at all? Multiple readings seem to me better on paper but they don’t seem to actually do much. In any case, I don’t think the executive veto involves anything clearly contrary to democratic principles–so long as they must be delivered and can be overridden quickly. Also I think something like 2/3 would have to be the limit of the required supermajority. FWIW, the short-lived Pennsylvania Constitution of 1776 tried to use (a Tushnetian mechanism) of referral to the electorate at large instead, but it was kind of a fiasco.
The veto still has a logic even if it can be overridden only by a simple or absolute majority. For absolute majority (at least 50%+1 of all members) it protects against legislation passing by a plurality of members (given abstentions) if the president decides to force the uncommitted to commit.
Even with simple majority (more yes votes than no), the mere fact of the presidential veto likely raises the profile of the issue and requires a reconsideration, which might lead to a different outcome. It potentially protects a committed plurality from getting away with passing something that went unnoticed until the president called attention to it with the veto message.
It is my understanding that even in countries where override is by absolute majority, a significant percentage of vetoes are sustained, but if there is a detailed study of such vetoes and override votes, I have not seen it. I am not sure about simple-majority override, because this is rare, I think.
I agree with Matthew – majority overrides can certainly make a difference. I will add that they also serve to test a coalition. It is the nature of legislative politics that a majority coalition that formed today may not survive a further vote.
I have yet to see a case where the override threshold was a simple majority. As you can see from the map, there are no such cases in the US.
I think reducing the override threshold at the federal level and in most states would be quite a good idea. I also think absolute majority override could well be combined with a suspensory veto. The example Rob provides above is not a bad one (during first three months override requires 3/5, then just an absolute majority; I would add the governor/president has two months to consider the bill in the first place).
It would probably be difficult to convince people to reduce overrides to absolute majority at the federal level, but reducing it to 3/5 in the House + abs. maj. in the Senate would be more widely acceptable, but still be a huge improvement. Lastly, I think introducing a line item veto would not be a a bad idea in general, and would probably be a concession to Republicans that would be relatively acceptable to Democrats.
I veto this bill as unconstitutional on the following explicit grounds and refer it to the supreme court—no override. judicial review but only only on the grounds stated in the veto message
I veto this bill as bad policy—absolute majority override
I have declared war on Canada because Justin Trudeau’s hair is so much nicer than mine—lapses after a short fixed period unless affirmed by the legislature, and reaffirmed at say 6 monthly intervals
Legislative disallowances should not be vetoable. One house should be able to disallow secondary legislation. The legislature should be able to provide that the executive can do certain things only with prior legislative consent.
Scenario (1) ought to be subject to at least one judge of the supremest court finding that there was a serious question of constitutional validity to be tried, otherwise the President could assert that Justin Trudeau’s hair breached the Nineteenth Amendment or whatever so as to ramp the override threshold up higher.