THE THIRD INGREDIENT towards constituting the vigor of the executive is an adequate provision for its support.
Without support, separation of the executive department from the legislative department would be nominal and nugatory.
The Congress – having a discretionary power over the salary and emoluments of the President – could render the President obsequious to their will.
In most cases, the Congress might either reduce him by famine or tempt him by largess to effect a surrender of his judgment and discretion to their inclinations.
While there are some who could neither be distressed nor won into a sacrifice of duty, this stern virtue is the growth of few soils.
In the main it will be found that a power over a man’s support is a power over his will.
If it were necessary to confirm so plain a truth by facts, examples would not be wanting – even in this country – of the intimidation or seduction of the executive by the terrors or allurements of the pecuniary arrangements of the legislative body.
The Prohibition of Any Salary Reduction Will Insulate the President
I therefore cannot commend too highly the judicious attention paid to this subject in the Constitution, where it is there provided: “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II, § 1, cl. 7, emphasis added.
It is impossible to imagine any provision more eligible for inclusion than this.
Upon the appointment of a President, the Congress is once and for all to declare what shall be the compensation for services during the time for which he shall have been elected.
This done, they will have no power to alter it – either by increase or diminution – until a new period of service by a new election commences.
By this rule, the Congress can neither weaken the President’s fortitude by depleting his necessities, nor corrupt his integrity by appealing to his greed and avarice.
Neither the United States nor any individual State will be at liberty to give or receive any other emolument than that determined by the first act of setting compensation.
The President, of course, can have no pecuniary inducement to renounce or desert the independence the Constitution intends for the chief executive.
The Presidential Power to Veto Is Essential to Executive Energy
Competent powers are the last of the requisites to energy in the executive.
The first thing we see is the qualified negative of the President upon the acts or resolutions of the Congress.
The President has the power of returning all bills with objections, which will prevent their becoming law, unless two thirds of both the Senate and House of Representatives afterwards ratify the measure, in which event the vetoed measure becomes law.
From the perspective of the President, if more than one third of either half of the Congress agrees with the veto, the veto stands.
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department.
I have already noted in Federalist 48 the propensity of the legislative department to intrude upon the rights and absorb the powers of the executive and judicial departments, the insufficiency of mere paper or parchment delineations of the boundaries of each, and the necessity of furnishing each with Constitutional arms for its own defense.
From these clear and indubitable principles, it is proper to give the executive a negative power – either absolute or qualified – upon the acts of the legislative department.
Without either an absolute or qualified veto power, the President would be completely unable to defend against the depredations of the Congress.
The President might gradually be stripped of authorities by successive resolutions, or annihilated by a single vote.
Whether one or the other, the legislative and executive powers might speedily come to be blended in the same hands.
The Veto Power Is Premised Not on Presidential Superiority, But Legislative Fallibility
Some objected to a presidential negative on the ground that a single individual would not possess more virtue and wisdom than a number of them, as in a legislative body.
When examined, this observation proved more specious than solid.
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone.
Instead it supposes the Congress will not be infallible; that the love of power may sometimes betray a legislature into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself would condemn upon more mature reflection.
One Department Ought Not Have the Opportunity to Dominate Another
Even in the absence of a legislative propensity to invade the rights of the executive, the rules of just reasoning and theoretic propriety teach us the executive ought not to be left to the mercy of the legislature, but must possess a constitutional and effectual power of self-defense.
The Limited Presidential Veto Power Can Forestall and Prevent Bad Laws, and Ameliorate Misguided Factions
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments.
The veto power has a further use, for it not only serves as a shield to the President, but furnishes an additional security against the enactment of improper laws.
It establishes a salutary check upon the Congress, calculated to guard the community against the effects of faction, precipitancy, or any impulse unfriendly to the public good then happening to influence a majority of that Legislative body.
This secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design.
The more often a proposed measure is brought under examination, the more will be the diverse situations of those who examine it, and the less will be the danger of those errors which flow from want of due deliberation, or those missteps which proceed from the contagion of some common passion or interest.
It is less likely these errors would infect all the parts of the Federal government at the same moment and in relation to the same object.
It is more likely that a common passion or interest would govern and mislead each department in turn.
The propriety of an executive veto power is not based on a supposed superior wisdom or virtue of a President acting alone. Instead it supposes the Congress will not be infallible.
The Veto Power Will Not Defeat Good Laws
Those opposed to an executive veto power have said the power of preventing bad laws includes the power of preventing good ones, and may be used to the one purpose as well the other.
But this objection has little weight with those who can properly estimate the mischiefs caused by inconstancy and mutability in the laws, which are the greatest blemishes upon the character and genius of our governments.
Those familiar with these defects would consider as beneficial every institution calculated to restrain the excesses of lawmaking and to promote continuity at any given period, since it greatly favors the stability required in any competent legislative system.
Any injury which may possibly be done by defeating a few good laws will be amply compensated by the advantages of preventing a number of bad ones.
Nor is this all.
The superior weight and influence of the legislative body in a free government – and the hazard to the executive who seeks a trial of strength with that body – afford a satisfactory security that a veto will be issued with great caution, so that a President will more often be accused of timidity rather than rashness in use of the Veto Clause.
The British Monarch Rarely Exercises Veto Power, and only as a Last Resort
The monarch of Great Britain – possessing a train of sovereign attributes and all the influence drawn from a thousand sources – would hesitate to put a negative upon the joint resolutions of the two houses of Parliament.
A king or queen would not fail to exert the utmost resources of that influence to strangle a disagreeable measure in its progress to the throne, in order to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body.
Should the British monarch ultimately venture to exert a negative prerogative, it invariably is limited to cases of manifest propriety or extreme necessity, with very considerable periods between its use.
The British Example Demonstrates Presidential Vetoes Will Be Infrequent
If an executive magistrate as powerful and well fortified as a British monarch would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a Federal government wholly and purely representative of the People?
In the situation where the President possesses only a common share of firmness, there would be a greater danger that the Veto Clause would not be invoked when necessary, than it would be used too often or too much.
Drawing on this, clever opponents to the veto power argued it was a power odious in appearance and useless in practice.
Simply because a power might be rarely exercised, it does not follow that it would never be exercised.
In the cases for which the Veto Clause is chiefly designed – an immediate attack upon the Constitutional rights of the executive, or a case in which the public good was evidently and palpably sacrificed – a man of tolerable firmness would avail himself of his constitutional means of defense, and would listen to the admonitions of duty and responsibility.
In the case of an immediate attack upon the executive’s constitutional rights, the President’s fortitude would be stimulated by an immediate interest in preserving the power of his office.
In the case where the public good was evidently and palpably to be sacrificed, the President would be induced to exercise a veto due to the probability of sanction by constituents at the next election.
While the People naturally incline to the legislative body in a doubtful case, they would hardly suffer their partiality to delude them in a very plain case.
These remarks are inapplicable to those executives who will have the courage to do their duty at every hazard under any circumstances.
The primary inducement to conferring veto power upon the President is to enable a self-defense against legislative encroachments. The secondary purpose of the executive veto power favors the community against the passage of bad laws, whether through haste, inadvertence, or design.
The Legislative Authority to Overturn a Presidential Veto Is a Sound Check on Executive Abuse
The Constitutional Convention sought a mean between the extremes of an absolute veto or no veto at all.
While the initial exercise of the veto power is vested in the executive, its efficacy depends on the sense of a considerable part of the legislative body.
Instead of an absolute negative, the executive has the qualified negative already described.
A qualified negative is a power much more readily exercised than an absolute negative.
A President who might be afraid to defeat a law by a single veto, might not scruple to return the measure for reconsideration, since final rejection would depend on more than one third of the Senators or Representatives concurring in the sufficiency of the President’s objections.
The direct and categorical negative of an absolute veto is more harsh and apt to irritate than the President’s suggestion of argumentative objections to be approved or disapproved by the Congress.
A President will be encouraged by the reflection that a veto will succeed only if a very respectable proportion of Senators or Representatives unite in supporting the propriety of the President’s conduct in the public opinion.
The less the veto power is apt to offend, the more apt it is to be exercised, and for this reason will be more effectual in practice.
It will not often happen that improper views will govern so large a proportion as two thirds of both chambers of the Congress at the same time, and even less so considering the countervailing weight of the executive.
It is far more likely that erroneous views will taint the resolutions and conduct of only a bare majority.
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation.
When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
The Success of New York’s Qualified Executive Veto Power
In New York, the veto power is vested in an executive council consisting of the governor and the judges on the State’s highest court, who have freely employed the veto upon a variety of occasions, and frequently with success.
Its utility became so apparent that persons who once violently opposed it later become its declared admirers through experience.
The power of a negative in the executive will often have a silent and unperceived – yet forcible – operation. When persons engaged in unjustifiable pursuits are aware that obstructions may come from a quarter they cannot control, the bare apprehension of opposition will often restrain them from doing what they would eagerly do if no such external impediments were to be feared.
The Qualified Veto Power of Massachusetts Was Ultimately Found Most Suitable
I remarked in Federalist 69 that the Constitutional Convention departed from the New York veto model in favor of the Massachusetts model.
Two strong reasons justified this preference.
One is that judges – who are interpreters of the law – might be improperly biased from having previously given an opinion in their revisionary capacities.
The other reason is that judges are often associated with the executive, which might induce them to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judicial departments.
It is impossible to keep judges too distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive.
Hamilton
[Ed. note: The pertinent part of the Veto Clause provides: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve 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 on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. . . .” (Art. I, § 7, cl. 2.)]