Obama Keystone XL veto sets high constitutional bar
As promised, President Barack Obama vetoed legislation on Tuesday that would have approved the proposed Keystone XL oil pipeline. So what are the odds of Republicans getting enough votes to override the veto?
Historically, Presidents have issued 2,564 vetoes since 1789 and 110 of the vetoes have been overridden by a two-thirds majority of the House and Senate. So 4.3 percent of vetoes have been overturned by Congress.
Currently, the Senate has 54 Republicans and the GOP would need 13 Democrats or Independents to break ranks to get to the 67 votes needed for an override vote.
The Republicans control more of the House, but just about 56 percent of the seats, and the GOP would need a similar percentage of non-Republicans to go against the President. So for now, the presidential veto stands a very good chance of holding up against an override vote early next month.
"Through this bill, the United States Congress attempts to circumvent longstanding and proven processes for determining whether or not building and operating a cross-border pipeline serves the national interest," President Obama said in the notification to the Senate of his veto decision.
The President made it clear last November that he would use his constitutional veto power as he faced two years of votes approved by a Republican-controlled Congress. During his first six years in office, President Obama only used the veto twice, and Congress didn’t override either veto.
The veto is one of the most significant constitutional powers reserved to a President. Often, the threat of a veto is enough to ward off legislation that will surely get rejected by the White House.
The original Constitution only listed five types of decisions that required a two-thirds super-majority vote in Congress, and two more were added in subsequent amendments.
Overriding a presidential veto requires a two-thirds majority in both the House and the Senate, as specified in Article 1, Section 7. On par with this type of decision is congressional approval of a constitutional amendment, or a decision by Congress to remove a President from office if he or she is found unable to perform presidential duties. (An impeachment trial vote in the Senate is also a super-majority vote, but just a simple majority vote in the House.)
With such a high bar to overcome, some Presidents have frequently used vetoes, especially when they are at odds with a Congress controlled by a rival party.
President George W. Bush, didn’t use a single veto during his first term, but he issued 12 vetoes in his second term, and 11 of the vetoes came in 2007 and 2008 – when the Democrats controlled the Senate and the House.
Congress overrode three Bush vetoes in 2008, but since the Reagan administration ended in 1989, only seven out of 118 presidential vetoes have been overridden by Congress.
The debate over the veto’s use goes back to the ratification debate over the Constitution.
Alexander Hamilton wrote in Federalist 73 that he feared the President wouldn’t use the veto enough.
“This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration,” he said.
Hamilton also saw the veto as a needed check against Congress.
“When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared,” he wrote.
James Madison favored a council made up the President and federal judges to evaluate any law passed by Congress to see if it should be vetoed.