Season 2, Episode 8 | Executive Resistance: The Veto Power as a Constitutional Check

In this episode, hosts Savannah Eccles Johnston and Matthew Brogdon examine the presidential veto — what it is, what it isn’t, and why it remains one of the most potent constitutional powers in modern governance.

They dissect the mechanics of Article I, Section 7, and explain the differences between the qualified veto (which Congress can override) and the pocket veto (which Congress cannot). Along the way, they revisit presidential losers like Andrew Johnson, discover why Reagan and Clinton both wanted a line-item veto and explore why even the threat of a veto is often more powerful than the veto itself.

Plus, a special focus on the institutional tug-of-war that defines the separation of powers and how the veto isn’t just a tool for lawmaking, but a key part of constitutional interpretation.

In This Episode

• (00:00:00) Reading the Constitution’s veto clause
• (00:01:42) Why the word “veto” never appears in the Constitution
• (00:02:17) Qualified vs. absolute veto power
• (00:03:58) How pocket vetoes work and why they’re sneaky
• (00:04:56) Override math: why two-thirds matters
• (00:06:46) Less than 10 percent of vetoes are overridden
• (00:07:54) Veto failures: Andrew Johnson, Franklin Pierce, George W. Bush
• (00:10:49) The veto as a political threat
• (00:13:00) Institutional vs. partisan power struggles
• (00:14:00) Madison's veto dreams and regrets
• (00:18:28) Reagan, Clinton, and the failed line-item veto
• (00:20:00) Clinton v. City of New York (1998)
• (00:24:23) Congress’s habit of abdication
• (00:25:26) Can the line-item veto return? Maybe.
• (00:26:00) Why do presidents explain their vetoes
• (00:28:00) Veto messages as constitutional arguments
• (00:29:14) Nixon’s War Powers Resolution veto lives on
• (00:30:00) Who interprets the Constitution? Everyone.
• (00:32:00) Checks, balances, and constitutional fights that matter

Notable Quotes

[00:02:06] “The president can veto a bill, subject to two-thirds override, but the word ‘veto’ doesn’t even appear in the Constitution.” — Savannah Eccles Johnston

[00:04:29] “The pocket veto isn’t in your face. It’s like, ‘Oops, I forgot to act and now all your legislative effort is dead.’” — Savannah Eccles Johnston

[00:11:24] “This almost feels like an absolute veto because you could never muster the political will to override it.” — Savannah Eccles Johnston

[00:24:30] “Congress can’t get its house in order, so they ask the president to run it for them.” 

— Savannah Eccles Johnston

[00:29:14] “Sometimes a veto message gets overridden, but the constitutional argument inside it eventually wins.” — Matthew Brogdon

[00:31:00] “The constitutional system is structured so that each branch has to interpret the Constitution for itself.” — Matthew Brogdon

Resources and Links

This Constitution  

• Website

Savannah Eccles Johnston

• https://www.linkedin.com/in/savannah-eccles-johnston-515a72198/
• https://www.instagram.com/savypolitics/

Matthew Brogdon

• https://www.linkedin.com/in/matthew-brogdon-8a21bb89
• https://www.uvu.edu/ccs/people/matthew_brogdon.html

Transcript

[00:00:00] Intro: We the people, do ordain and establish this constitution.

[00:00:13] Savannah Eccles Johnston: Welcome to this constitution. My name is Savannah Eccles Johnston. 

[00:00:16] Matthew Brogdon: And I'm Matthew Brogdon. 

[00:00:18] Savannah Eccles Johnston: Today we're going to talk about the veto, and we're gonna start by just reading the US Constitution 

[00:00:24] Matthew Brogdon: article. Every bill which shall have passed the House of Representatives and the Senate shall before it becomes a law be presented to the President of the United States.

[00:00:35] Matthew Brogdon: If he approves it, he shall sign it, but if not, he shall return it with his objections to that house in which it shall have originated. Who shall enter the objections at large in their journal and proceed to reconsider it? After such reconsideration, two-thirds of that house shall agree to pass the bill.

[00:00:54] Matthew Brogdon: It shall be sent together with the objections to the other house by which it shall likewise be [00:01:00] reconsidered. And if approved by two-thirds of that house, it shall become a law. You might think that's the end, but it's not. But in all such cases, the votes of both houses shall be determined by yays and nays and the names of the persons voting for and against the bill shall be entered in the journal, et cetera.

[00:01:17] Matthew Brogdon: If any bill shall not be returned by the president within 10 days, Sundays accepted after it shall have been presented to him. The same shall be a law in like manner as if he had signed it. Unless the Congress, by their adjournment, prevents its return, in which case it shall not be a law. I'm always surprised at how long that provision is every time I read it.

[00:01:42] Savannah Eccles Johnston: Something to note that the US Constitution is a very pithy document. It doesn't actually have as much to say as we think it does, and it just took a solid, what is it, full paragraph, two paragraphs. 

[00:01:52] Matthew Brogdon: It's, and it's not quite the end because actually there's another paragraph dealing with other orders and resolutions and, 

[00:01:58] Savannah Eccles Johnston: right.

[00:01:59] Savannah Eccles Johnston: I feel like we could have [00:02:00] made that much quicker. It could have just been. The president can veto a bill with subject to two-thirds override by the House and the Senate, but 

[00:02:06] Matthew Brogdon: Yeah, but then you'd have to use the word veto, which the farmers don't. 

[00:02:11] Savannah Eccles Johnston: Right. So why isn't the word veto in here? This is the veto power, but the word veto does not appear in the Constitution.

[00:02:16] Savannah Eccles Johnston: Right. 

[00:02:17] Matthew Brogdon: You know, this is one of those interesting cases where using a term like veto, we have an idea of what that means. It means to disapprove of a thing, but it's actually quite ambiguous. What does that mean? How do you indicate that you haven't approved the thing and then it has to be voted on again or, so the framers opt to do something that is actually quite sensible, which is to describe what actions people actually take?

[00:02:43] Matthew Brogdon: It's presented to the president in its written form. If the president approves it, he shall sign it. It specifies the action he's to take so that you don't have any ambiguity. Well, did the President approve it or not? There are clear hurdles that you pass at each step that [00:03:00] tells you, has it been approved or not?

[00:03:01] Matthew Brogdon: No, the president hasn't signed it. Well. Maybe it's a pocket veto, maybe it's pigeonholed. We don't know. 

[00:03:08] Savannah Eccles Johnston: I do like that because there aren't a lot of very, very, very specific procedural steps given in the constitution. You then present it and then this happens and that happens, so that's nice, but it's explaining two different processes here.

[00:03:19] Savannah Eccles Johnston: It explains both the qualified veto versus an absolute veto. We should. Probably talk about why they went for qualified instead of absolute, but it also talks about the capacity for a pocket veto. 

[00:03:30] Speaker 3: Mm-hmm. 

[00:03:30] Savannah Eccles Johnston: Which is something we don't discuss very much, but is still used by presidents today. So first, 

[00:03:35] Matthew Brogdon: pretty often, right?

[00:03:36] Matthew Brogdon: What the total, just for, for effect. Total number of vetoes at this point between Washington's presidency and the present. According to the correctional research service, thousand five Total. 66 of those, about two fifth of them, 40% are pocket vetoes. So the president did nothing. 

[00:03:58] Savannah Eccles Johnston: Right? Right. So 

[00:03:59] Matthew Brogdon: tell me how [00:04:00] that works.

[00:04:00] Matthew Brogdon: What happens? We get a pocket veto, 

[00:04:02] Savannah Eccles Johnston: right? That bill is debt, 

[00:04:06] Matthew Brogdon: maybe, 

[00:04:06] Savannah Eccles Johnston: Well, they could bring it back. And then of course there's a question of was it a full 10 days? Were they out of session at the time? There's lots of questions they bring up with it, but first I think we should clarify the veto everyone knows about, which is that qualified veto.

[00:04:22] Savannah Eccles Johnston: The two thirds, the one that's in your face, the pocket Vito isn't in your face. It's like, oops, I forgot to do it now. All your effort is dead. And actually 

[00:04:29] Matthew Brogdon: It occurs to me that explaining how this whole veto thing works is a little like learning the rules to a new board game. Yeah. You know where you get all this, well, if this happens then you have to do this.

[00:04:39] Matthew Brogdon: But on the other hand, it feels like learning Collins of Dun Shire a little bit. 

[00:04:42] Savannah Eccles Johnston: Yeah. 

[00:04:42] Matthew Brogdon: So, okay, let's do the qualified veto first. 

[00:04:46] Savannah Eccles Johnston: Yeah. So the qualified veto, so it's two-thirds override starting with the chamber. That's, that originates the bill and then the other chamber. So why two-thirds, not three forces?

[00:04:56] Savannah Eccles Johnston: Not an absolute veto. Why two-thirds? 

[00:04:59] Matthew Brogdon: Well, [00:05:00] the precise ratio is interesting because actually if you go read the convention notes, like Madison's notes of the federal convention that he keeps about this argument, which doesn't contain everything, but if you read his notes, they spend a lot of time arguing over two things.

[00:05:17] Matthew Brogdon: One is, should it be two-thirds or three-quarters that's required to override? That's a weird dispute. Yeah. Like what? Why does it matter that much? Actually, at one point, one of the delegates, Governor Morris says, we're talking about a couple of members of Congress difference. Does it really matter that much?

[00:05:34] Matthew Brogdon: And arguing over whether the judges ought to be involved in it, which we can roll back around to at some point, but actually there's relatively little debate. It comes up a couple of times, but there's not a ton of debate over whether it should be qualified or not. They kind of opt out of the absolute veto. The president can just kill legislation with no recourse by Congress, and then they haggle over the ratio and they settle on two-thirds because it seems like it's.

[00:05:58] Matthew Brogdon: Just enough and not too much. [00:06:00] 

[00:06:01] Savannah Eccles Johnston: Okay. You have mentioned in a previous podcast, actually back in season one on executive power 

[00:06:05] Matthew Brogdon: Yeah. 

[00:06:06] Savannah Eccles Johnston: That, uh, James Madison was wary of an absolute veto. 

[00:06:10] Matthew Brogdon: Yeah. So this is a weird dynamic. Some of the objections in the constitutional convention, and Madison talks about this in Federalist 51, this very famous Federalist paper, that some of the folks want a qualified veto because they're afraid an absolute veto won't get used enough.

[00:06:28] Matthew Brogdon: Presidents will hesitate to use the nuclear option of an absolute veto where there's no way to override it. 

[00:06:34] Savannah Eccles Johnston: See, but this is interesting because the qualified veto, even at just two-thirds instead of three-fourths override, is very powerful. Less than 10% of vetoes have ever been overridden. Mm-hmm. 

[00:06:46] Speaker 3: So 

[00:06:46] Savannah Eccles Johnston: clearly they've been used, what was it, 2,500 vetoes in our history.

[00:06:51] Savannah Eccles Johnston: So clearly they're being used. But they're still remarkably powerful even though they're not absolute. So you, you have to wonder, would they [00:07:00] have uh, actually had that kind of restraint where that nuclear option, they wouldn't have used. In fact, I think they might have liked that nuclear option.

[00:07:08] Savannah Eccles Johnston: Mm-hmm. A lot of times. So maybe Madison isn't right on this one. 

[00:07:11] Matthew Brogdon: Yeah. I think 111 times out like 2,500 vetoes. Well, you can only actually override. A real deal. Veto, right, right. With a, you know, where he returns the reasons to Congress. You can't override a pocket veto because Congress isn't in session.

[00:07:27] Savannah Eccles Johnston: Right. 

[00:07:28] Matthew Brogdon: Bills just dead. So, yeah, I mean, 111 out of 1500 or so, that's less than 1%. It's not frequent. 

[00:07:37] Savannah Eccles Johnston: Don't, so 

[00:07:37] Matthew Brogdon: overrides don't happen a lot. Most of the time. A few unfortunate presidents. Seems to have really run afoul of Congress and had their vetoes overridden a lot. 

[00:07:48] Savannah Eccles Johnston: Right. And the top three on this are Andrew Johnson Uhhuh.

[00:07:51] Savannah Eccles Johnston: He was only successful with his veto 26% of the time. 

[00:07:54] Matthew Brogdon: Yeah. And because he's, he's taking over from Abraham Lincoln. He's a Democrat. Yeah. So he is a [00:08:00] unionist democrat from the south, from a slave state who was Lincoln's running mate in 1864. And then Lincoln's assassination became president. We have a deep disagreement between Johnson and Congress, Republicans in Congress, over just how reconstruction ought to happen after the Civil War, and that plays out with the veto and veto overrides and all sorts of stuff.

[00:08:22] Savannah Eccles Johnston: Well, to make things worse for him, it's not just that he is a Democrat, it's also that he's coming after this, probably the most powerful president in our history, and we're looking for a swing back to Congress. It's not just to humiliate the Democrat, it's to humiliate the President and grab back power. 

[00:08:36] Matthew Brogdon: I don't think there's ever been a time where we've had, uh, a divided government where there was such a huge majority in Congress.

[00:08:44] Matthew Brogdon: Republicans easily have a supermajority in Congress. Mm-hmm. And we've got a Democratic president and I don't guess that's ever happened. Again, it's very peculiar. I mean, it would never happen electorally there, there's no way to do the math. 

[00:08:57] Speaker 3: Yeah. 

[00:08:58] Matthew Brogdon: Where you could somehow [00:09:00] have a party win two-thirds of Congress in both houses.

[00:09:04] Matthew Brogdon: The other party won the presidency. Right. Unless there's something very strange and fraudulent going on. 

[00:09:09] Savannah Eccles Johnston: Yeah. It has to be a, someone dies kind of situation. So that's number one. Number two is Franklin Pierce, which feels random to me that Franklin Pierce was only successful 44% of the time in his, yeah.

[00:09:19] Savannah Eccles Johnston: And a number of listeners 

[00:09:20] Matthew Brogdon: I think there was a guy named Franklin Pierce who was president. 

[00:09:24] Savannah Eccles Johnston: Yeah. 

[00:09:24] Matthew Brogdon: Win. 

[00:09:25] Savannah Eccles Johnston: Yeah. Yeah. And we don't actually have to talk about him any more than that, so he can remain in obscurity. And then number three, although 

[00:09:32] Matthew Brogdon: We do have to admit one of the things going on there, he's president in the 1850s, just before Buchanan, right?

[00:09:38] Matthew Brogdon: Mm-hmm. Pierce, then Buchanan, then Lincoln. So Pierce is a president in a period when you have one of the country's two major political parties, the WIS have crumbled. 

[00:09:49] Savannah Eccles Johnston: Yep. 

[00:09:49] Matthew Brogdon: And are crumbling and disappearing. Democrats are becoming a different political party because. They're becoming more housed in the south and you have a brand new [00:10:00] political party Republicans coming on the scene.

[00:10:02] Matthew Brogdon: So that created a really confusing and tumultuous kind of partisan environment. So Pierce is also sort of a victim of circumstance here. I don't really know how you govern as president in that situation. 

[00:10:16] Savannah Eccles Johnston: Right. Okay. And then number three is very recent. It's George Bush who was uh, only successful 60, what was it, 63% of the time with the veto?

[00:10:25] Savannah Eccles Johnston: This Bush two. 

[00:10:26] Matthew Brogdon: Bush two. I was gonna say, which bush? No, 

[00:10:28] Savannah Eccles Johnston: Bush two Bush, Bush two. And it's uh, in his Texas 

[00:10:32] Matthew Brogdon: bush or Connecticut bush. I have to know. Yes, 

[00:10:34] Savannah Eccles Johnston: yes. Texas Bush. And it's in his second term. That he's less successful and this makes sense. You have Democratic majorities in Congress from 2006 to 2008, so I guess that makes sense, but there's quite a gap between him and the next guy.

[00:10:49] Savannah Eccles Johnston: So there's, it's really those three of the big losers in our history for vetoes. 

[00:10:53] Matthew Brogdon: Is it surprising that you could assemble a two-thirds majority to override presidential vetoes in that decade in the [00:11:00] early 20th century? 

[00:11:00] Savannah Eccles Johnston: I agree with you, yeah, in the early 21st century. Yeah. I completely agree with you.

[00:11:04] Savannah Eccles Johnston: We don't have blowout majorities in the House or the Senate anymore. That feels like a vestige of the early New Deal era. That's not something we really have, and yet, Bush lost so frequently. In his, his attempt to veto. Okay. So back to this idea of whether are vetoes super powerful. Yeah, they are very effective.

[00:11:24] Savannah Eccles Johnston: Unless you're one of those three people. Mm-hmm. They're very effective. So maybe Madison's argument isn't as powerful as we think, but it also leads us to talk about simply the threat of veto. 

[00:11:36] Speaker 3: Mm-hmm. 

[00:11:36] Savannah Eccles Johnston: Because just the threat of a veto is often enough to get Congress to do what you want. 

[00:11:40] Matthew Brogdon: Yeah. Yeah. I think that's right.

[00:11:43] Matthew Brogdon: Presidents often signal. Their displeasure with a piece of legislation and get changes in it. So, I mean, it's a bargaining chip and it's a lot of work to put a piece of legislation together. So, if Congress has assembled a majority to pass a piece of legislation, having it vetoed is a real problem.

[00:11:59] Matthew Brogdon: If you [00:12:00] can't overwrite it because you, you have to wait until the next, it's, it's dead. You have to write a new bill, run it again, do the whole process over again. You can't just sort of go, okay, we're gonna vote on this again and send it back. 

[00:12:13] Savannah Eccles Johnston: I wonder if that's why outside of Bush, 21st-century presidents are so successful with the veto because they don't need to veto something.

[00:12:24] Savannah Eccles Johnston: Most of the time they don't actually have a ton of vetoes, 21st century presidents because your margins are so slim. And if you know anything about Congress, you know how brutal it is to pass any single bill, especially in the hyperpartisan environment that you have in the 21st century. So that makes this veto.

[00:12:41] Savannah Eccles Johnston: Almost feels like an absolute veto because you could never muster the political will to override it. So Biden didn't have any overrides. Yeah, I think Trump had one override 

[00:12:51] Matthew Brogdon: one, and it was minor. It was, he vetoed an appropriation bill or something. Okay. It was a real nothing burger, not a big thing.

[00:12:57] Savannah Eccles Johnston: Right. So this, this is very interesting, but it [00:13:00] also bears, uh, thinking about. The other kind of confrontational aspect of the veto. So the pocket veto is not confrontational. 

[00:13:07] Matthew Brogdon: Yeah. 

[00:13:08] Savannah Eccles Johnston: But there is something deeply confrontational about the qualified veto about this. You know, you actually just say no and send it back to them.

[00:13:16] Savannah Eccles Johnston: You're setting up a fight with Congress and it's an institutional fight. And I think that's a useful institutional fight because today we think in partisan terms, we think Democrat versus Republican. But this is an institution. 

[00:13:26] Matthew Brogdon: Yeah. 

[00:13:26] Savannah Eccles Johnston: Against institution. 

[00:13:27] Matthew Brogdon: Yeah, that's right. It's a space for. Here between the legislature and executive.

[00:13:34] Matthew Brogdon: Yeah. I think it's worth noting that actually the framers considered. Other veto points like building the vetoes into the system and other places that would've triggered similar contests and fights. Like there was serious discussion. Madison really wanted Congress to have a veto on state laws before they went into effect.

[00:13:55] Matthew Brogdon: So like Congress would get a copy of any state law before you could enforce it, and they could [00:14:00] veto it. I mean, imagine then that like this would be also in a similar fashion Congress threatening a veto on a state law might pressure a state legislature to alter the law to conform to Congress's will and avoid the veto 'cause that'd be very inconvenient getting the judges involved in the veto.

[00:14:16] Matthew Brogdon: There are actually two proposals there. One was like having the president sit in a council of revision with the judges because some people thought the president wouldn't be firm enough by himself. He, we need the judges to sort of like back him up, you know, like the groomsmen on the day of the wedding.

[00:14:32] Matthew Brogdon: Like, nah buddy, you're going through with this. But then there's this other weird proposal. Madison comes along a little later, like late in the convention 'cause he is unhappy and he thinks the executive by himself is not going to do enough to put a stop to legislative tyranny. And so he actually says no.

[00:14:49] Matthew Brogdon: What you're gonna do is send the bill to the Supreme Court. And to the president. And if one of them vetoes it, it disapproves. You have to pass it with a two thirds majority [00:15:00] in both houses. If they both disapprove of the bill, you gotta repass it with three quarters. Wow. But it's this weird proposal where he's struggling to find other ways.

[00:15:10] Matthew Brogdon: But imagine if we didn't just have a presidential veto in the system. Imagine if we had a judicial veto in the Supreme Court, which I understand some people might think is the court declaring laws and constitutional veto, but it's actually a little more complicated than that. And you had Congress doing this over the states.

[00:15:27] Matthew Brogdon: I mean, that would be wild. Source of political controversy. 

[00:15:31] Savannah Eccles Johnston: And also, again, we spoke about this before we started recording this episode, Madison seemed to have a complete lack of understanding of what the executive would actually become. Yeah. The idea that the executive wouldn't have enough, uh, firmness or power to push, get back against legislative tyranny.

[00:15:48] Savannah Eccles Johnston: It's actually really funny. Yeah. To think about in the 21st century legislative tyranny, we could only hope for legislative tyranny. Yeah. In the 21st century. So just this deep misunderstanding about the nature [00:16:00] of the executive and then also what Madison in 20 years would've liked a congressional veto of state laws.

[00:16:06] Savannah Eccles Johnston: Right. This is a weird Madison. He likes one thing in theory, and then 20 years later in practice it's a, oh actually. 

[00:16:11] Matthew Brogdon: Well, he gets a lot of hindsight. I mean, Madison is deep in the weeds in legislative politics. He becomes sort of the principal member of the House of Representatives. He's the guy who writes and proposes the Bill of Rights in the first Congress and starts out as an ally to the administration for two years, you know?

[00:16:29] Matthew Brogdon: Well, really for one year, for like one session, one Good Year, Madison is on the executive branch's side and sort of doing Washington's bidding in Congress. Then, I don't know if it's because he started seeing too much legislative power or because Thomas Jefferson got back from France and started exerting influence on him.

[00:16:49] Matthew Brogdon: But one or the other by 1790, Madison's like, this is too much. This is way too much. And yeah, so he gets the benefit of hindsight as a member of [00:17:00] Congress and I think decides the way that the institution actually winds up working. They had lodged too much power in the presidency and maybe been a little too suspicious of congressional power.

[00:17:10] Matthew Brogdon: But Madison, you know, this actually demonstrates Madison's humility in a way because he is willing to change his mind about stuff, even though he is on record doing a lot of things. It's interesting to me. You contrast that with Jefferson. 

[00:17:23] Savannah Eccles Johnston: Hmm. 

[00:17:24] Matthew Brogdon: Who did not like to give his opinions on anything publicly, in part because he didn't want to have to change his mind and take different positions.

[00:17:32] Matthew Brogdon: He preferred other people as political allies to go make arguments in public, you know? Right. Write pseudonymous essays and things. 

[00:17:39] Savannah Eccles Johnston: Right. 

[00:17:40] Matthew Brogdon: And Madison is willing to get out there in the political fray and publish opinions and take positions and be a legislative leader. That means he winds up changing his mind on the basis of experience.

[00:17:51] Matthew Brogdon: This is why Madison's a good legislator. Yeah, actually we need more legislators who are like, you know what? I was possibly wrong [00:18:00] about that. Maybe we should do this the other way. 

[00:18:02] Savannah Eccles Johnston: Yeah. Well, I mean, it's easy to sing the praises of James Madison, except that maybe he had a deep misunderstanding of executive power, and Hamilton had a much superior understanding from the very beginning.

[00:18:11] Matthew Brogdon: Sure. And it's easy to hate Jefferson. Always happy 

[00:18:14] Savannah Eccles Johnston: to hate on Jefferson. We should get back to the veto. Okay. 

[00:18:16] Matthew Brogdon: So of the two personalities of Publius, you know, Publius is an internal conflicted, dual personality disorder. Yeah. Hamilton wins. Hamilton wins. Okay. 

[00:18:25] Savannah Eccles Johnston: Yeah, yeah, yeah. And Jefferson always loses, but back to the veto.

[00:18:28] Savannah Eccles Johnston: So we have a qualified veto, we have a pocket veto, and then starting in the eighties, you get this push for something called a line item veto. Ronald Reagan will call for it in a, uh, state of the Union address, basically saying. I know there's a lot of pork barrel spending. 

[00:18:48] Matthew Brogdon: Mm-hmm. 

[00:18:49] Savannah Eccles Johnston: In the bills that you spend, that you send to me, and you can't pass this bill unless you include it.

[00:18:54] Savannah Eccles Johnston: So give me the power to veto those little added pork. I'll do [00:19:00] for you. I'll take the political crap for it. Mm-hmm. And will have a more efficient government. Bill Clinton then repeats this same request mm-hmm. In a State of the Union address. Congress does it, 

[00:19:10] Matthew Brogdon: A Republican congress, a 

[00:19:12] Savannah Eccles Johnston: re Republican Congress.

[00:19:13] Savannah Eccles Johnston: He can't say 

[00:19:13] Matthew Brogdon: democratic president. The line item, Vito, 

[00:19:15] Savannah Eccles Johnston: and I think it's very interesting. It's about the budget, it's about cutting the kind of pork barrel spending. That's what it is. Basically. Representatives so-and-so from Texas' third district would only accept this bill if it included $3 billion for a new road or something.

[00:19:29] Savannah Eccles Johnston: I, I 

[00:19:29] Matthew Brogdon: I feel like this is a little bit like a sort of alcoholic relative giving somebody else the keys. Yeah. Like I just, I just can't control it anymore. I really need help. I need an intervention. 

[00:19:41] Savannah Eccles Johnston: Right? 

[00:19:41] Matthew Brogdon: Here are the keys to the car. 

[00:19:42] Savannah Eccles Johnston: Right. 

[00:19:43] Matthew Brogdon: Help me. 

[00:19:43] Savannah Eccles Johnston: The president can be the bad guy and say, sorry you don't get this, but thank you for your vote the first time around.

[00:19:49] Savannah Eccles Johnston: Yeah. So that's what they want. This line item veto and actually Clinton exercises it mm-hmm. Quite a few times before the Supreme Court steps in and strikes down the line [00:20:00] item veto act of 1996. 

[00:20:02] Matthew Brogdon: Yeah. This is an interesting case. Uh, it's Clinton versus the City of New York and. Interestingly in the case, the court treats it as a line item veto, but then the dissenters in the case and Congress themselves go, well, I know we said line-item veto in the title of the bill, but it's not really a veto.

[00:20:23] Matthew Brogdon: We're actually canceling spending items. What we did was authorize the president to decide that he is not going to spend certain money that we've appropriated. And this is ironic because this is actually just exactly the power that we're arguing over with the Trump administration. Isn't that just a 

[00:20:40] Savannah Eccles Johnston: pound what on Earth?

[00:20:41] Matthew Brogdon: Well, but it's congressionally authorized in power. Well, 

[00:20:43] Savannah Eccles Johnston: well, but Congress has authorized that if 

[00:20:45] Matthew Brogdon: authorization from Congress to say, if you see something in a bill that you think is wasteful or unnecessary Right? And is only applied to spending. Nothing else. 

[00:20:53] Speaker 3: Yeah, yeah, yeah. 

[00:20:54] Matthew Brogdon: You can, the president can cancel those items, sort of take the Sharpie to it and go well, and it's technically in the bill.

[00:20:59] Matthew Brogdon: I [00:21:00] mean, one of the, one of the arguments for this is when the bill gets printed up in the US code, that spending item is technically there. Mm-hmm. It doesn't disappear. But the executive branch has sort of got an asterisk next to it and says, we're not actually gonna spend this money. 

[00:21:14] Savannah Eccles Johnston: See, but this is interesting because Congress had already passed the Impoundment Act.

[00:21:17] Matthew Brogdon: Yeah. 

[00:21:17] Savannah Eccles Johnston: Which granted a very similar process by which you could refuse to spend certain things. Just put it on pause, 45 days, send it to Congress for approval. But this is just the next step. We don't have to send it to Congress for approval. You can just delete it. And 

[00:21:29] Matthew Brogdon: importantly, only would apply to new bills.

[00:21:32] Savannah Eccles Johnston: Right. 

[00:21:32] Matthew Brogdon: So this, this would, the president would have to do this upfront at the beginning. 

[00:21:36] Savannah Eccles Johnston: Ah. Instead of later. 

[00:21:37] Matthew Brogdon: Right. Instead of later on. He couldn't go back and revisit bills from 20 years ago. Right. And change the way Congress has appropriated funds and so forth. So this would only apply to new spending items.

[00:21:46] Savannah Eccles Johnston: Right. Well, you can actually see why Republicans in Congress would like this. It's a way to cut spending, but, okay. So what? The Supreme Court says no. 

[00:21:55] Speaker 3: Mm-hmm. 

[00:21:55] Savannah Eccles Johnston: This qualifies as a line item veto, it's all or nothing. Mm-hmm. You don't get [00:22:00] to put an asterisk next to your signing of a bill. You either accept the whole bill or you say no to the bill.

[00:22:06] Savannah Eccles Johnston: Mm-hmm. What is the constitutional basis for their argument here? 

[00:22:09] Matthew Brogdon: Well, it's the text of verdict one, section seven. This is one of those opinions where you go, you actually can just go read the text of the Constitution, and we started out by noting. Article one, section seven is one of the most detailed provisions in the Constitution.

[00:22:22] Matthew Brogdon: Mm-hmm. I mean, terribly detailed. In fact, until the 25th Amendment dealing with presidential succession. I think it's almost certainly the most complex provision in the Constitution. I can't think of another. Mm-hmm. Come close to it. So you've got a very detailed provision that lays out every step. We noted that the president, it specifies the president shall sign a bill if he approves it, or he should return it to the house in which it originated with his objections if he doesn't approve it.

[00:22:48] Matthew Brogdon: So it gives the president a detailed dichotomous choice. Mm-hmm. Goes down to the level of specifying how the approval happens by signature. So given a, a provision that detailed, [00:23:00] that only gives three options, actually, the president can sign it, and the president can return it with objections. The President can do nothing, right?

[00:23:08] Matthew Brogdon: That's it. So when you have a detailed enumeration of options in a process. The court says that's all the options. There's not a number four, Congress can't go. You know what we really wish was there? We wish there was a special provision with respect to spending where the president could sign the bill and it could become law, but get rid of wasteful spending.

[00:23:29] Matthew Brogdon: That's not in Article one, section seven. Despite its level of detail and the, the way that it sort of carefully lays out this procedure. So that's the court's straightforward textualist basis for saying this, and they back it up with a little bit of. Sort of founding context by saying, this is how Washington understood it.

[00:23:46] Matthew Brogdon: There was a question when Washington was first confronted with legislation, does he just be 'cause he did consider vetoing bills and it was, could he, did he have to veto the whole thing in Toto -

[00:23:57] Matthew Brogdon: Latin for it? Or could he just get rid of the offensive parts and pass the rest into law? And Washington decided, Nope, this has to be construed according to the strict terms of the text, the process laid out.

[00:24:10] Matthew Brogdon: And so he. Either sign the bill or veto the bill. 

[00:24:14] Savannah Eccles Johnston: Washington was a textualist, so this is an easy decision for the Supreme Court. So if Congress wants to do this again, you've gotta amend the US Constitution. 

[00:24:22] Matthew Brogdon: Mm-hmm. 

[00:24:23] Savannah Eccles Johnston: That's the only way to do this. And this is so interesting, interesting to me because it plays into one of Congress's.

[00:24:30] Savannah Eccles Johnston: The most overwhelming tendency, especially in the 21st century, is to abdicate tough decisions to the president. Basically, we can't get our house in order to, uh, not spend all this much and convince this representative from Texas to only vote for this bill. If we send $3 billion to his district or whatever.

[00:24:47] Savannah Eccles Johnston: We lack the capacity to run ourselves as an institution. Please do it for us, Mr. President. That is the deepest tendency of Congress right now, and so it's kind of nice to see the Supreme Court say. You can take [00:25:00] care of your own institution. You can't actually abdicate that power as well to the president, though you've abdicated all these other ones.

[00:25:06] Matthew Brogdon: Although technically you could argue the court leaves enough room that Congress could come back and pass a new line item, veto act, not call it a line item. Veto makes it clearly an impoundment power, right? The President can impound any appropriated funds in a new spending bill. Without asking Congress permission for it to do that.

[00:25:26] Matthew Brogdon: It's hard to imagine Congress doing that in the present moment, partly because these negotiations and bargains that are struck, overspending items are part of getting the bills passed, so you can't take. A bill that might not have passed if it weren't for all these compromises and then get rid of the compromises.

[00:25:42] Savannah Eccles Johnston Oh yeah. 

[00:25:43] Matthew Brogdon: That sort of undermines the legislative process. Yes, that goes on. The sausage making process can't go on if you can't stick with the bargains you make. So can we also address the opinion part of this really quickly, returning it with his objections? Oh yes. Fact, the [00:26:00] PA. Objection. Mm-hmm. To the bill explaining the reasons for the veto.

[00:26:06] Matthew Brogdon: Well, he is told he must do it right? If he doesn't approve it, he returns it to them or he does nothing. So what's the effect of that? I mean, what, why is that significant? I. That the president gets to give this sort of account. 

[00:26:18] Savannah Eccles Johnston: I like the fact that the president has to give that account. It's a way to kind of spur deliberation.

[00:26:23] Savannah Eccles Johnston: It's not just a power play. These are the concrete reasons why I do not like this bill. Therefore, these are the things you should discuss. Right. When you're discussing and an override, he's kind of controlling the debate in Congress. Mm-hmm. From that step forward. So yes, it's a confrontation between two branches, but it's a conversation that's deliberative instead of just.

[00:26:43] Savannah Eccles Johnston: Pure meanness and institutional power against the other. 

[00:26:47] Matthew Brogdon: And it's interesting to me that when I teach constitutional law and start putting readings in the syllabus, obviously the first thing top of mind for most people are judicial opinions about constitutional issues. But any sort of [00:27:00] complete or course on constitutional law has to take into account presidential arguments about constitutionality.

[00:27:07] Matthew Brogdon: And it's interesting how many veto messages. Make their way into that list because it is an occasion where the president gets careful. In writing objections to something Congress has done, and those often come in the form of constitutional objections. Two of these I think are really important historically.

[00:27:28] Matthew Brogdon: Of course, Andrew Jackson's veto of the Recharter of the second bank of the United States. I. We won't dive into all the things about that. You could do a whole episode on it, but another one is actually Nixon's Veto of the War Powers Resolution. Ah, yes. When we did Presidential War Powers back in Season one, we talked about the war powers resolution, and people often call it the War Powers resolution rather than the War Powers Act.

[00:27:51] Matthew Brogdon: Because the President vetoed the War Powers Resolution, Congress then had to pass it. Over his veto. But Nixon's [00:28:00] message on this actually articulated some constitutional objections to the way Congress had done it. In particular, he laid out an argument about what he called legislative vetoes, that Congress had set up this process where if the president commits troops.

[00:28:15] Matthew Brogdon: Which he can do without asking permission or telling anybody. He has to inform Congress and then he's got a certain amount of time that he has to get congressional approval or otherwise he's gotta take them out. Right? Or Congress can sort of pass a resolution saying, no, that's inappropriate. Withdraw those troops.

[00:28:33] Matthew Brogdon: And Nixon said that actually functions kinda like a congressional veto on a presidential action. And he said that gets the whole system backwards. 

[00:28:40] Savannah Eccles Johnston: Right. 

[00:28:40] Matthew Brogdon: Congress can't sort of veto things the president does, but the legislative veto pervades. 

[00:28:46] Savannah Eccles Johnston: Yeah. 

[00:28:47] Matthew Brogdon: American government in the 20th century. And it's interesting that a decade later, the Supreme Court's gonna say the legislative veto is unconstitutional and largely on the basis that [00:29:00] Nixon had laid out in the veto message.

[00:29:02] Matthew Brogdon: So one of these really interesting situations where the president can articulate an AR argument, no veto message. Congress can override the veto on the bill, but the argument itself might actually win out in the long run. 

[00:29:14] Savannah Eccles Johnston: And this speaks to, I hope, one of the key themes of this entire season on checks and balances, which is who gets to interpret the US Constitution.

[00:29:23] Savannah Eccles Johnston: And the answer is. All three branches. 

[00:29:25] Matthew Brogdon: Everybody. 

[00:29:26] Savannah Eccles Johnston: Yeah, everybody. And most importantly, the American people, including 

[00:29:29] Matthew Brogdon: you, American people. Right, 

[00:29:30] Savannah Eccles Johnston: right. No, and I actually think that's really important that many of these checks and balances aren't just about balancing power, but about balancing and checking the other institution's interpretation.

[00:29:40] Savannah Eccles Johnston: Of the Constitution. These are the ways we fight over what the Constitution means, and the final decision maker is the voters who go to the booths. 

[00:29:48] Matthew Brogdon: Yeah. This is interesting because I just had a colleague talking to me about confirmation hearings for Solicitor General and some of the other Department of Justice positions that are being canvassed in the [00:30:00] Senate Judiciary Committee right now.

[00:30:02] Matthew Brogdon: I haven't watched the exchanges myself, who sort of recounting to me these exchanges where certain members of Congress were wanting these DOJ lawyers to commit to the contention that the president can never ignore a judicial order, like a judicial decision, or disregard the decision of a court. And this is actually quite a contentious question in American constitutional history, Lincoln FDR, Andrew Jackson, Jefferson have all.

[00:30:28] Matthew Brogdon: In various ways questioned the finality and the final authority of the courts to sort of say, this is what the constitution means and the rest of you fall in line. And it was interesting because in that, as I understand it, those sorts of exchanges, the lawyers are trying to sort of him and haw and say, well that's, that's not exactly uniformly true.

[00:30:48] Matthew Brogdon: And this is what you're getting at, that the constitutional system is set up as such. We have multiple institutions that are all charged with administering and adhering to the Constitution in the [00:31:00] performance of their own functions. And at the end of the day, it's hard for another institution to come along and tell the President how the presidency should be administered under the Constitution.

[00:31:09] Matthew Brogdon: It's very difficult for somebody to tell Congress, no, no Congress. The Constitution tells you to pass laws in a bicameral fashion. This is what it means. It's actually quite difficult for other institutions to do that. So whenever we talk about or wanna have, uh, judicial supremacy and say whatever the court says, the constitution is, that's what the constitution is and that's what it means.

[00:31:29] Matthew Brogdon: I. It is sort of swimming upstream from the Constitution structure, which actually fragments power and leaves each of those institutions charged with the responsibility to interpret the Constitution for themselves. 

[00:31:42] Savannah Eccles Johnston: Right. And in those instances that you mentioned about presidents who, uh, questioned the power of the courts to, uh, have the final interpretation of the Constitution, they often got away with it.

[00:31:53] Savannah Eccles Johnston: Because they had the people behind them, and that's the ultimate source of authority on interpreting the US Constitution. [00:32:00] And I don't know anyone who wants judicial supremacy in uh. Anything, least of all me, but, so we'll leave that at, 

[00:32:09] Matthew Brogdon: yeah, I mean everybody, you know, it doesn't take long doing the thought experiment to sort of walk yourself back through American history and imagine yourself sort of in each decade.

[00:32:19] Matthew Brogdon: And if you can walk through that process and at the end go, yes, throughout American history, it's a good thing that whatever the Supreme Court says the Constitution means, that's what it means. It's hard for me to come out on the end of that thought experiment. So. Veto. It's a political tool. It's an institutional tool for the President and Congress to duke it out over what ought to be in the laws and what laws there ought to be.

[00:32:43] Matthew Brogdon: But it's also a site for constitutional debate. Yes. And gets our political branches, the presidency, and the Congress talking about what the Constitution requires. And I think fundamentally that's a healthy thing. 

[00:32:56] Savannah Eccles Johnston: Ultimately, that's one of the key purposes of checks and balances, period. 

[00:33:03] Outro: The Constitution is more than parchment under glass at the National Archives.

It's a blueprint for American self-government that shapes every part of our civic life from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought & Leadership Initiative.