President Obama is widely expected to veto the Keystone XL legislation that has passed both houses of Congress this past week in its reconciled form.
It is also anticipated that the vote to override the veto will not reach the two-thirds majority needed--setting off the controversy over the checks and balances of the government.
Is modern politics really that different from the days of the Founders?
At times like this, we can look to the Founding Fathers--and see how our first five presidents employed this constitutional privileged of the executive branch.
The Vetoes of the Founders
Of the first five presidents, two didn't veto any legislation: John Adams and Thomas Jefferson.
Of the remaining three, only 10 bills were vetoed--8 by regular veto, 2 by pocket veto.
Of remarkable interest is that while the Constitution requires that the president submit "his Objections to that House in which it shall have originated," there is no mandate that these objections be based in fact (as opposed to just opinion).
George Washington's two vetoes are fairly interesting--the original version of the Apportionment Act of 1792 and a bill designed to alter an existing Act reforming the U.S. military in 1797.
The first veto was on constitutional grounds. The House was trying to give a better, non-proportional apportionment to eight states--thereby breaking the intent of the Constitution:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons...--Article I, Section 2, clause 3
The cause of the problem was that Congress had evenly divided the total U.S. census by 30,000 to arrive at the total number of House seats--which necessarily left remainders that had to be doled out non-proportionally.
Congress was unable to override the veto and the Apportionment Act of 1792 in its final form gave all states the same apportionment based on the figure of 1 representative for each 33,000 of "numbers."
Washington's second veto was on the advice of Secretary of War James McHenry--on an amendment to an existing law relating to the military. Probably the most remarkable aspect of this veto is how little is known about the reasons--or the context of the bill itself.
Madison had the most vetoes of the first five presidents--five regular and two pocket vetoes.
The topics of these seven vetoes varied, but three of them centered on the issue of federal government's involvement in religion--two on the issue of churches being given privileges in federally controlled land and one about the Bible itself.
Madison would have been lynched by the modern religious far-right, vetoing a bill that would have encouraged the printing and distribution of Bibles throughout the United States--but Madison's strict interpretation of the Constitution guided his political philosophy.
Of note to the current Keystone XL bill, Madison vetoed a major federal improvement bill and set the tone for the next presidency on the role of the federal government.
The Second Bank of the United States was enormously profitable--by the end of Madison's presidency it had amassed more than $1.5 million in profits.
The House measure, the Bonus Bill, was designed to use these profits to build roads and canals, as well as improve existing waterways and highways.
Madison vetoed this bill on the last day of his presidency--the "Father of the Constitution" emphatically declared that the popular idea of "implicit powers" was against the intent of the Constitution.
The fight over federal improvements continued well into Monroe's presidency.
Monroe's support of Madison's veto of the Bonus Bill set the tone for most of his first term.
Political jockeying came into play--with the House constantly trying to increase its ability to appropriate money for federal improvement projects.
Monroe's only veto was for the Cumberland Road Bill--a bill to repair and improve the Cumberland Road.
The Cumberland Road was an economic and strategic lifeline to the early Republic--moving both people and goods westward.
Not only did Monroe veto the bill--but he sent a scathing 29,000 word explanation of the powers of the federal government to Congress--including addressing the congressional responsibility (or lack thereof) of regulating the national economy and preserving strategic lifelines.
In this treatise, Monroe completely describes the uniquely separate roles of the federal and state governments--as he saw them from their creation.
This veto largely set the course of Congress' actions until the Civil War--under a literal interpretation of constitutional powers, with a federal power held in check by state's rights.
Almost two hundred years after the era of the Founders, American politics have substantially changed. The federalization of government, from the Civil War on, gave the Congress broad control over the national economy.
Even so, the Keystone XL is rightly under federal jurisdiction--involving both international and interstate commerce.
President Obama has used the veto power less than any post-WWII president--with only two vetoes (both successful) in his two-terms thus far.
But the controversy remains--why would he veto against a measure that is widely popular and passed both houses of Congress by almost super-majorities?
The answer is quite simple--his veto is guided only by his conscience and political ideology.
To Obama, the Keystone XL is nothing more than a Canadian pipeline, shipping their oil through the United States, for sale overseas.
Whether or not Obama's belief is factual is inconsequential, the right of presidential veto does not require an explanation based upon legal analysis and fact--but Obama's belief is widely going against popular opinion.
As Noah Webster said, “democracy is generally a very bad government, It is often the most tyrannical government on earth; for a multitude is often rash, and will not hear reason.”
Therein lies the check and balance of the veto power--that sometimes "widely popular" isn't enough to make for good governance.