We owe many of our expectations of the presidency to the office’s first occupant, George Washington. He set the precedent on many matters, including his being called “Mr. President,” to his only serving two terms.
Washington also set standards for exercising certain presidential powers. On April 5, 1792, he issued the first presidential veto of a congressional bill. The president’s constitutional power to veto laws comes from Article I, Section 7. That section concerns more generally how our national government creates laws. After Congress passes a bill, the president either can sign it, turning the bill into a law, or he can veto it, sending it back to the legislative branch with an explanation for his refusal. Congress then may override the veto but only if both chambers, the House of Representatives and the Senate, vote for the override by a two-thirds margin.
This presidential power should seem strange at first within our system. We adhere to the separation of powers, including the distinction between lawmaking in Congress and law enforcement in the president. Yet, the president’s signing or veto power is inherently legislative, comprising part of how a law is created. The Founders placed this power in the executive branch in part as a check on Congress. The president could use the veto to protect himself and his branch from any legislative attempts to eliminate executive independence and the constitutional powers of the presidency.
Though it sometimes happens, presidents today do not tend to veto bills because those bills pose threats to their power. They usually veto legislation for partisan and policy reasons. They reject bills that do not comport with their own agenda or that do too much to advance the prospects of the rival political party.
But Washington set another precedent for why and when presidents use the veto power. His first veto negated a bill apportioning House districts within the states after the first census of 1790. He did so not primarily because he thought it was bad policy or against partisan interests. Instead, his veto message declared that the bill violated the Constitution.
To come to this conclusion, Washington, as president, had to engage in constitutional interpretation. With the help of his divided Cabinet, he had to weigh whether the bill followed the requirements of the “supreme law of the land” regarding apportioning House districts. He concluded it did and acted accordingly.
Washington’s action should make current political actors take note. Too many presidents, congressmen, commentators, and voters assume that only the Supreme Court interprets the Constitution. In fact, presidents such as George W. Bush and Donald Trump have signed bills into law that they at the time of signing said were likely unconstitutional, leaving the judiciary to determine the question.
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Washington refused to cede such ground. As usual, he was wise to make that choice. He was the first man to take the presidential oath of office, also prescribed in the Constitution. That oath says that the president will, to the best of his ability, “preserve, protect, and defend the Constitution of the United States.” How can a president fulfill this promise toward the Constitution if he does not engage in independent interpretation of it? How can he preserve, protect, and defend our highest law if he is not willing to exercise all of his powers, including his veto, in service to that duty?
On this anniversary of the first veto, let us hope presidents will recover the full range of its legitimate power. Presidents again should wield the veto, not just for policy or partisanship, but as a protection of the limits on the power of other branches and on the national government in general. Doing so not only could better protect the Constitution. It also would better realize that last purpose listed in the Constitution’s Preamble, preserving “the blessings of liberty to ourselves and to our posterity.”
Adam Carrington is an associate professor of politics at Hillsdale College.
