Nature of the Presidential Veto
The presidential veto is the Constitution's negative check on legislation passed by Congress. It does not allow the President to make law, amend a bill, or substitute executive policy for legislative judgment; it only permits approval, disapproval, or, in limited bills, disapproval of particular items.
Under Article VI, Section 27 of the Constitution, every bill passed by Congress must be presented to the President before it becomes law. Presentment is indispensable because the President's participation, whether by signature, veto, or inaction within the constitutional period, is part of the lawmaking process.
The veto power balances legislative supremacy in lawmaking with executive responsibility to prevent unconstitutional, improvident, fiscally unsound, or administratively harmful measures from becoming law. Its use is political in motive but constitutional in form, so courts may review whether the veto stayed within constitutional limits.
Presidential Action After Presentment
Once a bill is presented, the President has three constitutionally recognized responses: approve it by signing, disapprove it by vetoing and returning it with objections, or take no action within the constitutional period.
If the President signs the bill, it becomes law. Signature signifies approval of the bill as passed by Congress, subject to the special rule on item veto in appropriation, revenue, and tariff bills.
If the President vetoes the bill, the bill does not become law unless Congress overrides the veto in the manner required by the Constitution. The veto must be communicated to the House where the bill originated within 30 days after the President's receipt of the bill.
If the President does not communicate a veto within 30 days from receipt, the bill becomes law as if the President had signed it. Executive silence within that period is treated as approval by operation of the Constitution.
The 30-day period runs from presidential receipt, not from congressional approval. The constitutional focus is presentment to the President, because the President cannot approve or disapprove a bill that has not yet been formally submitted for executive action.
Total Veto
A total veto is the disapproval of an entire bill. It is the ordinary form of veto for general legislation, because the President must either accept or reject the bill as a whole.
In a total veto, the President returns the bill with objections to the House where it originated. That House must enter the objections at large in its Journal and proceed to reconsider the bill if it chooses to pursue an override.
The President's objections do not have to persuade Congress or the courts as a matter of policy. Their constitutional function is to give Congress notice of the reasons for disapproval and to define the matter being returned for possible reconsideration.
A total veto prevents the entire bill from taking effect unless overridden. Congress cannot treat the non-objectionable portions as law, because ordinary bills are not subject to executive severance.
Item Veto
The Constitution grants a limited item veto in appropriation, revenue, and tariff bills. In these bills, the President may veto particular item or items without affecting the item or items to which he does not object.
The item veto is an exception to the general rule that a bill must be approved or rejected in full. Because it is exceptional, it is confined to the types of bills and the kind of severable items recognized by the Constitution.
An item must be separable from the rest of the bill and capable of being rejected without changing the meaning, operation, or legislative bargain of the parts approved. The President may not use an item veto to rewrite sentences, delete qualifications, or enlarge authority that Congress granted only with restrictions.
Appropriation Bills
In an appropriation bill, an item is ordinarily a specific sum of money set apart for a stated purpose. The amount and the purpose together identify the legislative authorization to spend public funds.
The President may veto an appropriation item because each item represents a distinct withdrawal authority from the Treasury. If the veto is valid, the vetoed item does not become law unless Congress overrides the veto, while the approved items take effect.
A condition, limitation, or proviso attached to an appropriation is generally part of the item if it defines how the money may be used. The President may not approve the money while vetoing a restriction that Congress imposed as part of the same appropriation, because doing so would convert a limited appropriation into a broader one not enacted by Congress.
However, a provision inserted in an appropriation bill may be treated as constitutionally inappropriate when it does not relate specifically to a particular appropriation, attempts to legislate on a subject better placed in a separate statute, or seeks to amend existing law through a budget provision. Such a provision is not protected merely because it appears in the appropriations measure.
The General Appropriations Bill is also governed by the constitutional rule that provisions in it must relate specifically to particular appropriations and must be limited in operation to those appropriations. This rule prevents the budget from being used as a vehicle for unrelated substantive legislation.
Revenue and Tariff Bills
In revenue and tariff bills, the item veto applies to separable fiscal items such as distinct taxes, duties, rates, exemptions, classifications, or revenue measures that can stand independently. The President may object to a particular fiscal item without defeating the entire revenue or tariff bill.
The same severability principle controls. The veto must remove an item, not alter the statutory design by deleting words that qualify, limit, or condition the fiscal measure approved by Congress.
If a tax exemption, rate, or tariff classification is inseparable from the scheme adopted by Congress, selective deletion may amount to amendment rather than veto. The President's role remains one of disapproval, not legislative reconstruction.
Limits on the Veto Power
The President cannot veto a bill before it is presented, cannot veto a bill after it has already become law by approval or by lapse of the 30-day period, and cannot revive a vetoed measure without congressional action.
The President cannot enact a substitute measure through a veto message. A veto message may explain objections, but it cannot add conditions, create appropriations, impose taxes, grant exemptions, or authorize executive action not found in the law.
The President cannot exercise a partial veto over ordinary bills. Outside appropriation, revenue, and tariff bills, selective approval and selective disapproval would violate the constitutional requirement that the same bill passed by Congress be the bill acted upon by the President.
The President cannot use item veto to strike mere words, phrases, provisos, or conditions when the deletion changes the legislative meaning of the approved remainder. A veto that changes the effect of the bill from what Congress passed is an attempted amendment.
The President cannot use the veto power to transfer appropriations, augment items, impound funds, or withhold execution of a valid law. Questions on spending after enactment belong to the separate rules on budget execution, savings, augmentation, and faithful execution of laws.
The President may object to unconstitutional provisions, but constitutional objection does not automatically expand the form of the veto. If the Constitution requires a total veto or permits only an item veto, the President must still act through the proper constitutional mode.
Congressional Override
Congress may override a presidential veto by the vote of two-thirds of all the Members of each House. The requirement is based on the full membership of each House, not merely on the Members present or voting.
The override process begins in the House where the bill originated. That House reconsiders the bill after the President's objections are entered in its Journal. If two-thirds of all its Members agree to pass the bill, the bill and the objections are sent to the other House.
The other House must likewise reconsider the bill. If two-thirds of all its Members also approve, the bill becomes law despite the President's veto.
The votes in an override must be determined by yeas and nays, and the names of the Members voting for or against must be entered in the Journal of each House. The Journal requirement is a constitutional record of compliance with the extraordinary voting threshold.
Congressional override is not a new enactment of a different bill. It is the constitutional reconsideration and repassage of the same bill returned by the President, under a higher voting requirement.
Congress cannot override a veto by concurrent resolution, simple resolution, committee action, certification, or political declaration. The only effective override is the bicameral supermajority procedure prescribed by the Constitution.
If Congress does not override the veto, the vetoed bill or vetoed item fails. Failure to override leaves the President's disapproval effective, but it does not prevent Congress from passing a new bill through the ordinary legislative process.
Effect of Veto and Override
| Presidential Action | Legal Effect |
|---|---|
| Signature of the bill | The bill becomes law according to its terms. |
| No veto communicated within 30 days from receipt | The bill becomes law as if signed. |
| Total veto of an ordinary bill | The entire bill fails unless overridden by two-thirds of all Members of each House. |
| Valid item veto in an appropriation, revenue, or tariff bill | The vetoed item fails unless overridden; the non-vetoed items remain effective. |
| Invalid partial veto | The attempted veto is ineffective to alter the bill; the provision remains governed by the law as enacted, subject to judicial review. |
| Successful congressional override | The bill or item becomes law despite presidential disapproval. |
Judicial Review
Courts do not review the wisdom of a veto, the sufficiency of the President's policy reasons, or the political desirability of an override. Those matters belong to the elected branches.
Courts may review whether the veto complied with constitutional requirements. Review may involve whether the bill was the kind subject to item veto, whether the matter vetoed was a true item, whether the veto was communicated on time, or whether Congress observed the override requirements.
When an attempted item veto is unconstitutional because it deletes a condition or proviso inseparable from an appropriation or fiscal item, the veto cannot be used to enlarge what Congress enacted. The executive cannot receive more authority from an invalid deletion than Congress conferred in the bill.
When a veto is valid, the vetoed matter never becomes law unless overridden. When a veto is invalid, the courts treat the executive action as ineffective and apply the statute according to the Constitution and the legislative text that validly passed through lawmaking.
Related Constitutional Principles
The veto power is tied to bicameralism and presentment. Bicameralism requires passage by both Houses of Congress; presentment requires submission of the passed bill to the President; veto and override supply the constitutional mechanism for disagreement between the political branches.
The President's duty to execute the laws begins after a bill becomes law. A veto is available before enactment, but after enactment the President must enforce the law unless a competent court restrains or nullifies it.
The override power confirms that Congress remains the primary lawmaking body. The President can stop a bill by veto, but Congress can enact it over that objection when the Constitution's supermajority and Journal requirements are satisfied.
The item veto confirms that fiscal legislation receives special treatment because appropriation, revenue, and tariff bills may contain many separable fiscal choices. The special treatment protects the public fisc while preserving Congress's control over the content of law.