Ruminations, 18 VTBJ, Fall 2018-#14

PositionVol. 44 3 Pg. 14


No. Vol. 44 No. 3 Pg. 14

Vermont Bar Journal

Fall, 2018

The Veto, The Override, and the Constitution

When a Governor objects to a piece of legislation, the executive has three choices—to sign it into law, to allow it to become law without a signature, or to return it to the chamber that first proposed it. Those are the choices if the bill is presented to the Governor before adjournment. A different regime applies after adjournment. As there is no legislature to which to return the bill, it does not become law without the Governor’s signature. The bill only becomes a law if the Governor signs it within five days, not counting Sundays, after presentment. The process of returning the bill is called veto, Latin for “I forbid.”

When a Governor returns legislation to the chamber that originated it, the legislature may enact the law if it passes again by a vote of two-thirds of a quorum in each body. The vote of each member must be announced. This is called an override.

Vermont’s veto is described in Section 11 of the Constitution, but “forbid” is too strong a word for its exercise. Vermont’s, as that of the United States, is a qualified veto, subject to being overridden. Article I, Section 7 of the federal constitution describes the process at the national level. The two sections are nearly identical in form and process.

Between the time of the first gubernatorial veto in 1839 and the vetoes of Governor Philip Scott in June and July of 2018, Vermont Governors have exercised the power 152 times.1 The Governor who used the veto power most was Howard Dean with 21. James H. Douglas vetoed 18 bills, Madeleine Kunin and Philip Scott nine, Richard A. Snelling and John A. Mead eight. Twenty-five Vermont Governors never issued a veto.2 The veto was used less in the first years and has increased in recent decades. Half of all the vetoes have been made since 1965.

Of the 152 vetoes, ten have been overridden, four from the time when the veto was first added to the Vermont Constitution in 1836, when only a majority of each chamber was necessary to override. After the Constitution was amended in 1913 to require a two-thirds vote, there have been six more.

There were 26 vetoes that challenged the constitutionality of proposed legislation. These vetoes represent the executive exercise of constitutional review. The judiciary has judicial review, and its “veto” is absolute, although the legislature can always enact a similar law that avoids the stated constitutional defect. The legislature, for its part, tries to avoid unconstitutional laws during the committee process and by action of the floor of each chamber. But the executive veto is the tool the Governor has to prevent hasty and improper bills from becoming law, and particularly those that offend the Constitution.

History of the Veto; Absolute or Qualified Vetoes

Roman tribunes vetoed legislation by the Senate to protect the plebeians against the patricians. Kept out of the Senate during its sessions, tribunes would shout through the door of the Senate chamber, “veto” for the proposal to be rejected.3 The English Constitution gives the crown an absolute veto over the acts of Parliament. Queen Elizabeth I approved 43 bills and vetoed 47 in 1597. Commentator James Kent explained, “In the English constitution, the king has an absolute negative; but it has not been necessary to exercise it since the time of William III.”4 In Federalist LXIX, Alexander Hamilton described why. “The disuse of that power for a considerable time past, does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation.”5

John Locke wrote a constitution for the colony of Carolina in 1669, and included an absolute veto by the Palatine or his Deputy, and three of the Lords or Proprietors.[6] George III vetoed colonial legislation, and that led to American independence.7 The Articles of Confederation were void of a veto, as there was no executive to interfere with the absolute power of the Continental Congress.[8]

In Federalist LI, James Madison explained why an absolute veto was a bad idea. “On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused.”9 Frederic Mainland explained the difference. “A qualified negative answers all the salutary purposes of an absolute one, for it is not to be presumed that two thirds of both houses of Congress, on reconsideration, with the reasoning of the President in opposition to the bill spread at large upon their journals, will ever concur in any unconstitutional measure.”10

The Governor and Council

Vermont had no veto until 1836. From 1777 to 1836, the Governor could not act alone. The executive branch was governed by the Governor and Council, a body consisting of the Governor and twelve Councilors, elected at large at the General Election. The Governor and Council played a role in legislation. Section XIV of the 1777 Constitution provided, To the end that laws, before they are enacted, may be more maturely considered, and the inconvenience of hasty determination as much as possible prevented, all bills of public nature shall be first laid before the Governor and Council, for their perusal and proposals of amendment, and shall be printed for the consideration of the people, before they are read in General Assembly for the last time of debate and amendment; . . . .11

Nothing required the legislature to correct a bill before it became law based on the Governor and Council’s proposals. The Constitution provided that the bill only had to be delivered to the Governor and Council, and printed, before final passage. There was no requirement that the bill be returned to the House before passage and no need to reenact a bill for any reason.

In 1784, the legislature passed “An act directing the form of passing laws.” This act provided that once a bill has passed the Assembly and was approved by the Governor and Council without amendment, the bill would become a law. When a bill was passed and the Governor and Council took no action within three days or before the adjournment or rising of the legislature, it should be returned to the Assembly and recorded as a law. “But if all or a part of the proposed Amendments shall not be concurred in by the Assembly (the reasons for which Amendments shall be given verbally or in writing) the Bill shall be returned to the Council, and the reasons for the non-concurrence be given, either verbally or in writing, that the Council may, if they shall think proper, proceed further thereon. And if the Council shall not, within three days, or before the rising of the Legislature, propose further Amendments which shall be agreed to by t he Assembly, the said Bill shall be returned to the Assembly, and considered and recorded as a Law.”12

The law did not address what happened when the Assembly disagreed with the proposals of amendment a second time.

Seven years later, the constitution was revised. As adopted in the 1786 Constitution, all bills . . . shall be laid before the Governor and Council for their revision and concurrence, or proposals of amendment; who shall return the same to the Assembly, with their proposals of amendment, if any, in writing; and if the same are not agreed to by the Assembly, it shall be in the power of the Governor and Council to suspend the passing of such laws until the next session of the Legislature. Provided, that if the Governor and Council shall neglect or refuse to return any such bill to the Assembly, with written proposals of amendment, within five days, or before the rising of the Legislature, the same shall become law.13

This was Section XVI of Chapter II. Printing was no longer required, and the Governor and Council could suspend the effective date of a bill for a year. When bills were not returned within five days or before the next session of the General Assembly, they became law by default.

In 1801, the legislature passed a law revising the 1784 law, attempting to clarify Section XVI. When a bill passed and was sent to the Governor and Council, and returned to the House, with proposals of amendment or a conclusion not to concur, the legislature could pass the bill again. The bill would go back to the Governor and Council, for “their revival, concurrence or proposals of amendment,” but the 1801 act explicitly prohibited the Governor and Council from returning the bill to the House a second time.[14]

A bill entitled, “An act, to repeal a part of an act therein mentioned,” was passed by the House in 1825, sent to the Governor and Council, and suspended for a year. It was not returned to the House in 1826, which took up the measure on its own (without the actual bill) and concluded it was a law, without the concurrence of the Governor and Council. The Governor and Council regarded this as an “assumption of power, unprecedented and unwarranted by the constitution.15 A week later, the House passed its own resolution, concluding that the Constitution gave the House the right to pass suspended bills into law. This led the Governor and Council to direct their secretary to keep suspended bills in his possession, not to be returned without the express direction of the Governor and Council.

The system worked well, or at least with-out incident, until 1826. The prior year, the Assembly has passed a bill repealing a part of the law relating to the jurisdiction of justices of the peace.16 A justice could hear and decide...

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