Distribution of power is the essence of the U.S. Constitution. In fact, the Constitution does very little to pave the way for efficient government; rather, sparking conflict among the three branches in an effort to make power diffuse.
Even in an atmosphere of constant conflict, however, a rare constitutional meteor shower is about to light up the skies.
At issue is a white-hot bill approved by both bodies of Congress to permit families of 9/11 terrorism victims to sue the government of Saudi Arabia. President Obama wants to veto the measure. Both bodies of Congress are tentatively prepping to override Obama’s veto.
The founders entrusted the legislative branch with extensive powers. But writing in Federalist paper #73, Alexander Hamilton worried about restraining the legislature. Hamilton suggested that the executive branch might hesitate to contest the legislative branch. So Hamilton pushed for a presidential veto: a mechanism where the executive could overrule the legislature and hold it in check.
“Veto” is Latin for “I forbid.”
But, conflict is the quintessence of the U.S. Constitution. So Hamilton advocates something less than an absolute veto for the president. He suggests tipping the scales back in favor of the legislature – if both bodies of Congress can override the veto with a two-thirds vote.
Article I, Section 7 of the Constitution dictates how a bill becomes a law. It states that both bodies of Congress must approve the package and requires the president’s signature. Here’s where the veto escape clause lies. If the president disagrees with the bill, “he shall return it, with his Objections to that House in which it shall have originated.” Congress then has the option of attempting an override. Still, an override effort is not mandatory.
If the president returns a bill to sender, he must issue his veto message within 10 days (excluding Sundays) of receiving the legislation. A bill becomes law without the president’s signature if he doesn’t veto the bill within the 10-day threshold.
President George Washington first used his veto pen on April 5, 1792, on a measure dealing with congressional reapportionment. It would be another 53 years before Congress overrode a veto. Congress overrode a veto by President John Tyler on March 3, 1845, on a bill dealing with the construction of revenue-cutter ships. The override proved to be an ignominious punctuation point to Tyler’s fluky presidency. Tyler’s term expired the next day.
Congress has never overridden one of Obama’s vetoes. Lawmakers stumbled to override the president on bills dealing with the Keystone pipeline and repealing ObamaCare. Congress last successfully overrode a presidential veto in July, 2008. A Democratic House and Senate overrode the veto of President George W. Bush on a Medicare package.
The veto and override apparatus sets up the ultimate conflict between the executive and legislative branches. The Constitution entrusts a lot of power to the people via the legislative branch. But with a veto override option, the Constitution returns the ultimate authority to the bodies representing the people -- if lawmakers muster a supermajority in both chambers.
The Senate originated the 9/11 bill. So it was up to the Senate to send the measure to the White House. The Senate did so on Monday, Sept. 12. That set in motion the 10-day calendar (excluding this past Sunday) which requires Obama to veto the bill by 11:59:59 p.m. ET Friday, Sept. 23 or the bill becomes law regardless.
It was thought the Senate could approve all of its work for the fall last week and skip town. That would have been the perfect scenario for the Obama administration. Senate Majority Leader Mitch McConnell, R-Ky., itches to cut loose vulnerable GOP senators facing competitive re-election bids. Also, it was doubtful the president would veto the bill while he huddled with world leaders at the start of the U.N. General Assembly in New York this week.
Many thought it was unlikely the Senate would reconvene prior to the election for an override vote. Moreover, punting the override vote until after the election inoculated lawmakers who may oppose the bill. Article I, Section 7 of the Constitution requires a recorded roll call tally to document how lawmakers vote on an override. So, postponing an override vote protects lawmakers from bad optics of “opposing 9/11 family victims.”
But Congress hasn’t figured out a way to expeditiously finish its work to fund the government – this week, let alone last week. So Congress will meet at least through next week. And McConnell plans a veto override effort in the coming days.
So expect the president to veto the bill Thursday or Friday and return the package to Capitol Hill alongside an exhaustive set of objections.
Terrorism and foreign policy are emerging as a major theme for the GOP just six weeks before the election. There were this weekend’s terror attacks in New York, New Jersey and Minnesota. The House is voting on multiple bills dealing with the so-called “ransom” the U.S. paid to Iran to release hostages. Congressional Republicans might not be able to duplicate the efforts of lawmakers in 1845 when they handed President Tyler a veto on the day before he left office. But the GOP can sure saddle Obama with a big defeat on a national security issue just before an election with the first successful override of a veto.
Capitol Attitude is a weekly column written by members of the Fox News Capitol Hill team. Their articles take you inside the halls of Congress, and cover the spectrum of policy issues being introduced, debated and voted on there.