To Veto Or Not To Veto

Brian Balogh: Washington’s first presidential veto created a powerful weapon in the Commander in Chief’s armory, and it’s one that has been in the news lately, because President Trump just issued his first presidential veto.

Joanne Freeman: Yes indeed, Brian, and it’s all part of the push and pull surrounding funding for the border wall.

Brian Balogh: I wanted to know where President Trump’s veto fits into the big picture of presidential vetoes throughout the 20th century and beyond, so I got in touch with Jeffrey Engel. He’s Director of the Center for Presidential History at Southern Methodist University in Dallas. I started by asking Jeff what presidents have to consider as the wrestle with the question to veto or not to veto.

Jeffrey Engel: There’s actually I think two fundamental tracks that you have to think of, and then other questions spin off from there. The first is the question of, “Do I not like this legislation because I believe it violates the Constitution, or because I don’t like the politics?” And we’ve seen lots of cases, to be honest more in the 19th century but some in the 20th, in which the president says, “I don’t believe that Congress is reading the Constitution correctly, and I have the authority to make them think about it again or really decide if they want to do this.” That’s sort of level A, and that’s rare.

Jeffrey Engel: Level B, question B is, “Am I doing this for political reasons as to say I disagree with the policy?” Then it gets really tricky, because the president at that point has to go through essentially a logic chain where he asks him or herself, “If I say no to this, will it get overwritten? Is my congressional support strong enough to back me? Of course, if it’s strong enough to back me, why do they send me this legislation in the first place?” I think frankly the president ultimately has to decide why Congress is sending him or her something that could be veto able, because one of the things that’s really fascinating is that we focus on the big cases, the exciting constitutional dramas where the president and the Congress are pitted against each other over big ideals.

Jeffrey Engel: The truth is the majority of vetoes in the 20th century are essentially Congress passing something they really don’t want to, and they know the president will veto. That way they can go to their constituents and say, “Hey, what … We did our part.” If that’s the case and the president would know that, he can pocket veto it or he can just decide that he wants to reject it out of hand and everybody walks away happy.

Brian Balogh: So tell us what some of the most important, the most notable, or most notorious presidential vetoes have been over the last century.

Jeffrey Engel: Some of the most famous cases, for example, are Ronald Reagan’s decision to veto sanctions against the Apartheid led government of South Africa in the mid-1980s, and that was a really interesting and difficult decision and controversy. Because obviously Apartheid was not only unpopular in the United States, it had become in many ways a cause celebre among people in the United States, and the opposition within the United States and the world community. But America in particular was growing on a weekly basis as more and more people realized either A, Apartheid was terrible, or B, I should say Apartheid is terrible because that’s good politics for me, even if I’m not concerned with it.

Jeffrey Engel: Ultimately there builds momentum in Congress for mass sanctions in South Africa beyond even the sanctions that the United States had already imposed. And Ronald Reagan, who frankly was interested in keeping good relations with South Africa for geopolitical reasons, and also I would say had never made African American civil rights one of his … which of course was a group that was concerned with the South Africa issue, he never made African American civil rights one of his primary issues. So he argued that the sanctions that Congress was imposing on South Africa were far too sweeping, far too broad.

Ronald Reagan: And now we’ve reached a critical junction. Many in Congress and some in Europe are clamoring for sweeping sanctions against South Africa. The Prime Minister of Great Britain has denounced punitive sanctions as immoral and utterly repugnant. Well, let me tell you why we believe Mrs. Thatcher is right. The primary victims of an economic boycott of South Africa would be the very people we seek to help. Most of the workers who would lose jobs because of sanctions would be black workers.

Jeffrey Engel: This despite the fact that leaders throughout South Africa, Desmond Tutu, for example, most famously, begged him to impose these sanctions. Recognizing that, yes, we will suffer, but the whole country needs to suffer if we’re going to make the government change. Ultimately Reagan therefore vetoes a sanctions bill in order to say, “I want different kinds of sanctions.” And the fascinating thing about that is that nobody realized that’s what the argument was about in the regular media. That is to say, people in Washington knew that this was a debate in this essence over what type of sanctions we want to have. Throughout the country it was understood as a debate over whether or not Ronald Reagan is a racist, which is to say perhaps he doesn’t care about South Africa and Apartheid. It was a wonderful, from a historian perspective, wonderful example of how the large public broad discussion was completely divorced from the actual policy at hand even though it was one of the biggest policy discussions of the day.

Brian Balogh: And what was the ultimate outcome? Did he get a more tailored sanctions bill?

Jeffrey Engel: No. As a matter of fact, his veto was overwritten, and so consequently Congress got its way on that one. In many ways that allowed everybody to turn around happy again. So Ronald Reagan was able to say on a political level, and more importantly on an international diplomatic level, “Listen. I did my best for what I thought was good policy.”

Brian Balogh: Right, “I went to the mats. What can I do if Congress is gonna override me?”

Jeffrey Engel: This is all I got. You know, and the argument that, “My hands are tied,” doesn’t always sound and resonate well overseas when a president offers that, because the President of the United States is the most powerful person in the world. But this is a case where the president can actually point to the Constitution and which line of the Constitution says, “Here is where it says my hands are tied.” So that’s a much more powerful argument for him overseas, and Congress got the sanctions it desired.

Brian Balogh: If you look back, and you don’t have to look back that far, vetoes used to be a lot more common. I think FDR is the world champ. I mean yes, he served four terms, or almost four complete terms, but he’s got hundreds and hundreds of vetoes to his credit.

Jeffrey Engel: Six hundreds, yeah.

Brian Balogh: 600, so what’s the deal there, and if I don’t have my history wrong, he had a Democratic Congress for a lot of the time.

Jeffrey Engel: Exactly. Exactly. I mean [inaudible 00:21:01] We naturally think that the president is going to have more vetoes when the other party controls Congress and therefore they’re butting heads, but as you point out, FDR had a Democratic Congress throughout his entire time in office. What that did in an interesting way was essentially turn the veto into not a way for the president to stop legislation that he didn’t like most of the time, but rather to stop legislation, as I mentioned earlier, that everyone didn’t like. There were numerous instances where the Congress passed, we would consider it to be basically petty resolutions. “This one individual needs compensation,” or that they need to change the name on a post office, something along those lines. Discussion was held with the Congress that, “You know? This will make Congressman Bob happy if we pass this, but we don’t really want it. So the president can veto it, and we’re all happy in the end.”

Brian Balogh: Well, if you step back a little bit, does the use of vetoes or frequent use of vetoes, does it tell us anything about Roosevelt’s attitude towards executive power itself, or as you put it, these are kind of trivial things and it’s just kind of internal face saving measures?

Jeffrey Engel: Roosevelt is fascinating in the regard that you just mentioned, his view of executive power, because he believed, I think, in expansive federal power. In fact, in his initial inauguration during the height of The Depression, he explains very clearly to the public that he is going to ask Congress for legislation to meet the current crisis, The Depression, “But if Congress does not give me what I want, I will ask it then for executive powers. And I will assume executive powers.” Basically if the rest of the world is recognizing in 1933 that some crises are best resolved by having strong men in charge, I’m willing to do that if necessary.

Jeffrey Engel: Throughout his time in office there were many moments where Franklin Roosevelt essentially made the executive decision to move the country in a direction, even as he’s trying to persuade Congress, but before he had actually persuaded it. Sometimes obviously that was pushed back by Congress, most famously of course I think in his plan to pack the court to get more of his allies on the court by expanding the size of The Supreme Court. Then ultimately, I think more importantly, his decision from 1937, ’38 on, to integrate the United States more into the global problems that resulted in World War II and to rearm the country in preparation for that. He did a tremendous amount of executive reach to move the country in that direction despite, if not Congressional opposition, then at least Congressional ambivalence.

Brian Balogh: We know that recent presidents, recent being the last 30 or 40 years, used the veto pen a lot less than presidents in the first half of the 20th century. What’s going on there?

Jeffrey Engel: I think the fundamental reason is because the president is engaged in the discussion process, the formation of legislation, the sausage making if you will, from the beginning. Therefore we see fewer and fewer bills get passed by Congress that the president hasn’t already signaled that he’s going to approve, because he’s been … His team have been [inaudible 00:24:25] negotiators. And connected to that, directly connected to that, is the rise of large omnibus bills. That is to say 75 pieces of legislation within one act that the president’s people, with Congress, have negotiated all 75, and you’re not going to vote on it until you get all 75 approved. So the president may disagree with one, agree with 74, he’s not gonna get it across his desk until the omnibus bill is passed. The days when Congress would essentially pass important legislation to make sure that Mrs. Baker from Smithfield continued to receive her husband’s pension, that doesn’t go through Congress anymore, and so as long as the issues are huge, the chances that the president is going to get a piece of legislation that he dislikes to his desk are increasingly small.

Brian Balogh: Jeff, does the public have an attitude about the use of veto generally, or is it always very much connected to the specific legislation that the president is vetoing?

Jeffrey Engel: You know, I think the public is really quite satisfied with a president using his or her veto pen, because that’s an easily understood constitutional right the president has. That’s I think one of the things that made the recent and ongoing brew ha ha over President Trump’s initial veto, the only one of his administration thus far, such a fascinating political Rorschach test. President Trump wanted a border wall, the Congress would not pass legislation that would give him the border wall he wanted, so he declared that he was going to use funds already appropriate by Congress for purposes not appropriate by Congress through his executive authority.

Brian Balogh: Under his emergency powers.

Jeffrey Engel: Yes.

Brian Balogh: As authorized by congressional legislation, according to Trump.

Jeffrey Engel: According to Trump. Well that’s it, according to Trump. And whether or not you agree with the president or not, the fundamental point is that no president has ever done that before. No president had ever assumed the authority, and there Congress came back and voted against the president’s use of that executive authority. However, not by 2/3 in The Senate. Therefore, President Trump’s use of emergency powers, unprecedented use of emergency powers, stands even though the public looks at Congress and says, “Didn’t Congress just vote against that twice?” And more importantly, didn’t members of the president’s own political party come out strongly against his use of executive authority in this way and then wind up voting in favor of his use of executive authority in this way? Those are the kind of cases when the public watches the tennis ball, if you will, being batted back and forth multiple times and people seeming to play on both sides of the tennis court, if you will, that the public does not like. Because that’s not necessarily a clear use of executive authority, that’s, again to use the phrase, a swampy use of executive authority.

Brian Balogh: So do you think this decision even though Trump won this particular legislative battle, at least for now, do you think this will hurt Trump politically?

Jeffrey Engel: No. I think it’s gonna help Trump politically. In fact, this is a great example, I think, of a president using his veto power for personal political gain in many ways, because President Trump clearly wants to run his 2020 campaign with immigration, and let’s be clear, being extremely strongly against immigration, especially from the Southern parts of the Western hemisphere. He wants that to be the signature issue. If he actually gets what he wants, which is a huge wall across the Southern border, even if Mexico pays for it or not, if he actually gets that, he doesn’t have that to campaign on. So I think the more that he is able to do things that tie up this issue, and more importantly even better for him, if the courts intervene and rule that his action was unconstitutional-

Brian Balogh: That’s where I was headed. It’s almost like a second veto.

Jeffrey Engel: Yes, but it’s a second veto that the president would welcome, I think, politically in this case. So if Trump can not only make the argument that the liberals are making you unsafe on the border, but those darned liberal judges are making you unsafe by exerting their own authority to try to curtail my exertion of authority, as long as that issue is one that he can rail on, I think he’s a happy camper.

Brian Balogh: That was Jeffrey Engel. He directs the Center for Presidential History at Southern Methodist University. He’s co-author of the book Impeachment in American History.

Brian Balogh: Joanne, as the Washington whisperer, tell me what our first president would’ve thought about the idea of one of his successors, Franklin D. Roosevelt, vetoing 635 pieces of legislation. 6-3-5, count them.

Joanne Freeman: Wow. Washington was unsure about producing one veto, so 635. I mean, but if you think about the first presidency, I mean Washington as the first president, he was pretty nervous about really doing anything that was a major assertion of power. There hadn’t been a president before, so something that we now take for granted, although maybe not 635 times for granted, but still. You assume that that’s a power of the presidency, and Washington did not necessarily assume that that was something that he would be doing during his presidency. One of the things that I always find really moving is actually Washington’s copy of the Constitution, because when you see it … I think Mount Vernon owns it, and when you look through it, what he does really carefully, and it’s related to this idea of the veto, he goes through and in the margin wherever the president is responsible for something, he wrote, “President.” So he was really, really carefully delineating, “What are the things I’m supposed to do?”

Brian Balogh: Are you sure he wasn’t just rubbing it in? As in, “I’m the president. That would be me, the president.”

Joanne Freeman: No, that would require an exclamation point I think. President. But you know, he really was thinking about power, right? The presidency, that’s the main point of controversy with the presidency is that it’s one person with a potentially enormous amount of power. So how did people respond, Brian, to the 635? I mean were there people screeching about executive power?

Brian Balogh: Well, they certainly charged Roosevelt with that, but I’m not sure that the number of vetoes would be at the top of the list compared to, let’s say, changing the number of justices on the Supreme Court, increasing it to fit your legislative agenda.

Joanne Freeman: That’s a good one.

Brian Balogh: My own sense is that Washington might have been far more appalled that there were 635 pieces of legislation, and that really underscores the kind of legislation that FDR vetoed. Which very much comes out of the middle and later parts of the 19th century, and that’s, as you know, Joanne, all of those what were called personal bills, legislation that actually had to do with one individual. Giving them a pension and that kind of thing. So my own guess is that Washington might’ve been much more appalled by that than the number of vetoes. Roosevelt viewed the presidency very different, and of course he lived in a very different time.

Brian Balogh: Here’s where the international context may tell us a lot. I mean let’s think about some of the leaders of other countries at the time that Roosevelt was president. Let’s see. We’ve got Hitler. We’ve got Mussolini. We’ve got Stalin. I mean Roosevelt very much viewed himself as surrounded by strong men who could do what they wanted, do it quickly, and not do it with a lot of back and forth and conversation. It was only shortly after Franklin Roosevelt’s death and after World War II that Congress was labeled a horse and buggy institution in the atomic age. So there was a strong feeling throughout the 20th century, really starting with Teddy Roosevelt and Woodrow Wilson. It wasn’t just Franklin Roosevelt that, you know, this Congress thing, this deliberation thing, this debate thing, this openness thing, that might not work so well in the 20th century.

Joanne Freeman: Hmm. Interesting. Interesting, because at the beginning of the government, what they were worried about more than anything else of course was power, was a channel of power seemingly issuing from one person. I mean it’s why they debated at least for awhile at The Constitutional Convention, having some kind of panel of executives and not one particular person. Because they were so worried about the precise thing that you’re saying in a sense is necessary in the 20th century.

Brian Balogh: Let’s turn to the 21st century. I’d love to hear your thoughts about President Trump’s first use of a veto. What would George Washington have thought about … Well, I don’t know what he would’ve thought about the wall, but what would he have thought about the extension of emergency powers to in essence reverse congressional appropriations?

Joanne Freeman: Wow. There’s a question I never imagined being asked.

Brian Balogh: Well, neither did George, so this is perfect.

Joanne Freeman: Yeah. That’s true. Well, you know, on the one hand I think Washington and any number of other individuals would be stunned at that kind of assertion of power. Interestingly, probably another aspect of the veto that Washington would’ve picked up on is the fact that it got so much public attention. Washington was extremely sensitive to how the public was viewing his actions and his assertions of power, or lack of assertions of power. So in a sense, he might’ve felt some empathy towards someone making an assertion as much as he might not like it, and seeing the public so engaged in responding to it.

Brian Balogh: I have a bonus question for you.

Joanne Freeman: Oh no, okay.

Brian Balogh: Did Washington sign the first veto with a Sharpie?

Joanne Freeman: I can definitively say no.

Brian Balogh: Thank you, Joanne.

Joanne Freeman: Well, so I’m gonna turn this now back on you, Brian. You made me compare Washington and Trump, so how might FDR see similarities or differences between the situation he was engaged with and what we’re seeing now with President Trump?

Brian Balogh: Well I think one similarity, Joanne, is like FDR, Trump not only sees strong men around the world, frankly he’s quite attracted to them. Pundits have talked about his bromance with some of them. Now, of course he has many options to choose from. It’s not so long ago that we were talking about democracy breaking out in the Middle East and democracy breaking out around the world. The difference between Trump and Franklin D. Roosevelt is that I think Trump is trying to be more like these strong men, and Roosevelt was trying to figure out a way to save constitutional governance in a world where strong men could operate pretty swiftly, pretty quickly, without public consent. He was trying genuinely to thread a needle.

Joanne Freeman: That’s it for us today, but you can keep the conversation going online. Let us know what you thought of the episode or ask us your questions about history. You’ll find us at backstoryradio.org. Or, send an email to backstory@virginia.edu. We’re also on Facebook and Twitter at BackstoryRadio. Whatever you do, don’t be a stranger.

Brian Balogh: Backstory’s produced at Virginia Humanities. Major support is provided by an anonymous donor, The National Endowment for the Humanities, the Provost’s Office at The University of Virginia, the John Hopkins University, the Joseph and Robert Cornell Memorial Foundation, and The Arthur Vining Davis Foundations. Additional support is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment.

Speaker 8: Brian Balogh is Professor of History at The University of Virginia. Ed Ayers is Professor of the Humanities and President Emeritus at The University of Richmond. Joanne Freeman is Professor of History and American Studies at Yale University. Nathan Connolly is the Herbert Baxter Adams Associate Professor of History at the John Hopkins University. Backstory was created by Andrew Wyndham for Virginia Humanities.