In January 1788, Luther Martin of Maryland wrote, “And it was further argued, even if he [the President] was allowed a negative, it ought not to be of so great extent as that given by the system, since his single voice is to countervail the whole of either branch, and any number less than two-thirds of the other… .”
Luther was speaking of the debate over the presidential veto at the Philadelphia Convention of 1787. Fear of executive power saturated the debates at both the Philadelphia Convention and the various state ratifying conventions held to give the Constitution its “vitality,” as James Madison later wrote. No one in that generation (publicly) wanted an elected king.
Luther consistently railed against it, and it may be surprising to most Americans in the modern age that the president was never intended to be the chief legislator. It would be news to Bloomberg, some liberal bloggers, and even President Barack Obama himself, given his refusal to negotiate with his “bomb-throwing” opponents in this fabricated budget “crisis.” According to the Constitution as ratified by the founding generation, this isn’t his job. Nor would members of the founding generation agree with the use of the veto as a legislative hammer.
James Wilson of Pennsylvania proposed at the Philadelphia Convention that the president have “an absolute negative” over proposed legislation. He was alone in this fight. Elbridge Gerry of Massachusetts thought this was unnecessary because “the best men in the community would be comprised in the two branches” of Congress. Benjamin Franklin, in one of his rare speeches at the convention, thought that such a power would reduce the legislature into “compleat [sic] subjection to the will of the Executive.” And Gunning Bedford of Delaware said that, “The Representatives of the People (the House of Representatives) were the best judges of what was for their interest, and ought to be under no external controul [sic] whatever.” George Mason of Virginia was more direct. Such a power, he said, would lead to a dangerous place, an “elective” monarchy.
The fight continued in the state ratifying conventions and in the press. William Findley of Pennsylvania, speaking at the state ratifying convention, argued that the veto power as written dangerously blended the legislative and executive branch because no law could be passed without the president’s “revision.” “The Impartial Examiner” of Virginia wrote in 1788 that the veto power would be one step toward an absolute monarchy. “If the system proposed had been calculated to extend his authority a little farther, he would preponderate against all — he alone would possess the sovereignty of America.”
By that time, of course, the current language of the veto power had already been codified. The president can veto legislation, but a two-thirds majority of both houses could override his veto. Madison thought this would have the same effect as an absolute negative, but he argued the president would never “have firmness eno’ to resist the Legislature unless backed by a certain part of the body itself.” James Wilson insisted at the Pennsylvania Ratifying Convention that “no bill passes in consequence of having his [the president’s] assent…” and that the president would be guided by the “strict propriety of language” in the Constitution, meaning he was not the chief legislator nor could he “read between the lines.”
Herein lies the modern problem. Obama’s intransigence has the support from Senate Democrats, but it should be Harry Reid and Dick Durbin, not Obama, negotiating with House Republicans. Obama is violating his oath as president in this process. His job is to execute the laws congress passes. He has violated his oath in this regard several times, even as it pertains to Obamacare specifically, and by refusing to “negotiate” with Republicans over a spending bill is unconstitutionally interjecting himself in the legislative process.
The founding generation would agree. The first five presidents — all from the founding generation — issued a total of 10 vetoes in thirty-six years, eight of which were traditional vetoes with a message to Congress explaining their action. All bills were vetoed on constitutional grounds, meaning the president thought the law in question violated the Constitution. Obama cannot say that about the current proposals from the House of Representatives. The Congress is acting within its constitutional power to defund a federal program, one that is constitutionally dubious from the beginning. By grandstanding against congressional power of the purse, Obama has exceeded his authority and has become what the founding generation feared, an elected king.
Unfortunately, he is not alone. Virtually every president in the last one-hundred years has departed from the original understanding of the veto power. Americans on both sides of the political spectrum need to be consistent in their outrage at executive dictatorship. Otherwise, we are left with ever-expanding executive power. Franklin opined in the Philadelphia Convention that, “The executive will be always increasing here, as elsewhere, till it ends in a monarchy.” Perhaps he was more right than he knew. The American people are behind arresting this abuse and that disaster that is Obamacare. Congress is right to act.
