The Presentment Clause

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.

—James Burnham & Louis J. Capozzi III

Introduction

The Presentment Clause prescribes the exclusive method for passing federal laws, indicating that all bills must be passed by both houses of Congress and be subject to the President’s veto.

Ever since the Romans gave the Tribunes the power to veto legislation, political theorists have recognized that veto holders wield great power over lawmaking.¹ The Declaration of Independence condemned abuses of the veto by the King, his Privy Council, and colonial governors. Unsurprisingly, only the Massachusetts and New York constitutions permitted an executive veto when the Framers met in Philadelphia.² Yet, after significant debate, the Framers gave the President a qualified veto over legislation.

The Framers took this controversial step with the primary goal of making lawmaking harder. In recent years, however, the veto has functioned primarily to make unilateral lawmaking by the executive branch easier—by preventing Congress from overruling regulations. It is a pressing modern question whether the Constitution’s veto and its lawmaking system more generally are functioning properly.

History Before 1787

The Framers were familiar with vetoes under British law. Three overlapping vetoes limited the laws under which colonial citizens lived.

First, the king had an absolute veto over legislation passed by Parliament.³ Where the king chose to “reject what bills” he pleased, that power was “absolute” and there was “no legal authority that [could] either delay or resist him.”⁴ As a practical matter, however, the veto had fallen into disuse well before the American Revolution. The last British monarch to veto a bill from Parliament was Queen Anne in 1708.⁵ By 1742, David Hume observed that the king’s veto had become “little better than a form.”⁶

Second, royally appointed colonial governors could veto bills passed by colonial legislatures in ten of the thirteen colonies.⁷ This led to governors abusing the power for personal gain. For example, in Pennsylvania, colonial governors routinely used veto threats to prevent interference with their orders to the colonial treasury.⁸ Benjamin Franklin complained that “[n]o good law whatever could be passed without a private bargain with [Pennsylvania’s governor].”⁹

Third, the king’s Privy Council could review and veto legislation passed by most colonial legislatures.¹⁰ The Privy Council, acting in the name of “the King in Council,”¹¹ understood itself to be exercising the delegated authority of the king’s absolute veto to secure British interests and “to protect the colonies or any of their inhabitants from ill-advised legislation.”¹² Notably, many of the Privy Council’s vetoes came only long after the relevant laws had gone into effect, thereby effectively repealing a law that had already been in force.¹³ One New Hampshire law, for example, was vetoed fifty-one years after passage.¹⁴

The first three grievances against the king in the Declaration of Independence focused on the veto, and memories of the abusive use of the veto power left Americans with a “deep antipathy” toward its integration into their post-Revolution state governments.¹⁵ To most Americans, “the popular assemblies were the bulwark of popular liberties, [and] the executive departments were the instrumentalities of British control.”¹⁶

In that context, it is unsurprising that the original state constitutions largely denied their governors a veto. South Carolina alone granted a single executive the veto power¹⁷—only to strip that power away two years later.¹⁸ New York created a durable, hybrid veto system in its Council of Revision, but this body included not only the governor but also state senators and judges.¹⁹ Only the Massachusetts constitution of 1780 gave its governor a sole veto over legislation, subject to a two-thirds override by both houses of the legislature.²⁰

The Constitutional Convention

Despite the widespread opposition to vetoes under British rule and the absence of gubernatorial vetoes in the states, the delegates to the Philadelphia Convention—after much debate—empowered the President with a veto.

The Virginia Plan proposed allowing the executive to veto Congress’s legislation as part of a Council of Revision that included judges.²¹ This proposal would likely have operated similarly to New York’s system.²² But Elbridge Gerry and Rufus King, both of Massachusetts, successfully objected to involving judges in the lawmaking process.²³

As the Convention settled on a single President (with no executive council), “a spirited debate” began “between those who favored an absolute veto, those who favored a veto with an override, and those who opposed the presidential veto altogether.”²⁴ Benjamin Franklin argued against giving the President any veto, reminding delegates about how colonial governors had abused the veto in Pennsylvania.²⁵ Franklin cautioned that the President could use a veto threat to obtain “power and money” and then “influence and bribe the Legislature into a compleat subjection to the will of the Executive.”²⁶ Pierce Butler of South Carolina argued that “in all countries the Executive power is in a constant course of increase,” raising the risk that a tyrant like “Cataline or a Cromwell” might emerge.²⁷ George Mason of Virginia also expressed concerns about the “probable abuses of a [veto],” questioning whether the delegates were constituting a monarchy more dangerous than the British monarchy: “an elective one.”²⁸

Others believed a veto was essential to restrain excessive lawmaking. James Madison of Virginia described the veto as the “most cherished function for the President” because it would allow him to check excess lawmaking by Congress.²⁹ James Wilson of Pennsylvania agreed and proposed giving the President an absolute veto over Congress.³⁰ That proposal, however, was easily rejected.³¹ Alexander Hamilton also agreed and proposed giving the President an absolute veto over state legislatures as well, though few were interested in that proposal.³²

The Convention would agree to a qualified veto over Congress. The delegates accepted Elbridge Gerry’s proposal that the President’s veto be subject to override by a two-thirds vote of each house of Congress.³³ More than two months later, the delegates revisited the question, and a fresh battle ensued. Gouverneur Morris of Pennsylvania advocated strengthening the veto to “prevent the hasty passage of laws.”³⁴ Roger Sherman of Connecticut responded by questioning why “one man” should “be trusted better than all the others if they all agree.”³⁵ At the close of the debate, Hugh Williamson of North Carolina moved to increase the override threshold to three-fourths; that motion passed by a six-state to four-state vote.³⁶ George Washington, who was widely expected to be the first President, favored this proposal.³⁷

Then, mere days before the Convention ended, Hugh Williamson moved to revert to a two-thirds veto.³⁸ Williamson admitted he had changed his mind, and now argued that a stronger veto “puts too much in the power of the President.”³⁹ Elbridge Gerry and George Mason supported the change, contending that the President should not have too much power to block laws or their repeal.⁴⁰ Gouverneur Morris and Alexander Hamilton, however, argued that the New York legislature was overriding too many vetoes with a two-thirds override.⁴¹ James Madison also opposed the change, arguing that the veto was necessary to guard against majoritarian “injustice.”⁴² Ultimately, the full Convention voted to reduce the override back to two-thirds, which is where it remained in the final Constitution.⁴³

Although Madison, Wilson, and Hamilton did not get as strong a President (or veto) as they wanted, the Convention’s choice to give the President a veto ensured that the President would play a powerful role in lawmaking. Their victory—a substantial departure from prevailing state practice—is a testament to the delegates’ deep fear of legislatures and lawmaking.

The Ratification Debates

Some responses to the veto power reflected the fear that the Constitution was “vesting discretionary powers in the hands of man, which he may, or may not abuse.”⁴⁴ Luther Martin of Maryland, a member of the Convention who did not sign the final Constitution, argued that the President should not have a veto. He reasoned that “the sovereignty was not in [the President], but in the legislature,”⁴⁵ and further charged that “as here constituted, [the President is] a king, in every thing but the name.”⁴⁶ Others worried that the veto did not go far enough. For example, Anti-Federalist writer Centinel asked how a non-absolute veto could prove efficacious when “[e]ven the king of England . . . has not dared to exercise it for near a century past.”⁴⁷

Federalist writers, however, vigorously defended the veto as part of their larger argument that the president differed from the king of Great Britain.⁴⁸ In Federalist No. 69, Hamilton argued that the “qualified [veto] of the President differs widely from [the] absolute [veto] of the British sovereign.” In Federalist No. 73, Hamilton specifically defended the veto as necessary to check “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” The veto, he explained, “furnishes an additional security against the enaction of improper laws.” Hamilton acknowledged that the veto could be used to prevent “good” laws but reasoned that the “injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.” After all, Hamilton insisted, “every institution calculated to restrain the excess of lawmaking” is “much more likely to do good than harm; because it is favorable to greater stability in the system of legislation.”

The Problem of Delegation

As Hamilton explained, the primary reason the Framers gave the President a veto was to make lawmaking more difficult. In part, they succeeded in achieving that goal. Presidents have vetoed significant legislation throughout American history.⁴⁹ In such circumstances, only rarely has Congress overridden those vetoes. As of May 2025, Presidents have vetoed legislation 2,597 times, and Congress has overridden only 112 vetoes.⁵⁰

But the veto’s most important function has arguably shifted with the vast congressional delegation of lawmaking power to the executive branch.⁵¹ In Federalist No. 73, Hamilton argued that without the veto, the President “might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote.” In fact, the opposite has happened. From the 1940s through the 1970s, Congress passed the effective equivalent of blank-check statutes, giving the executive branch vast discretion to issue whatever regulations it deems reasonable.⁵² For example, the Occupational Health and Safety Act allows the executive branch to make any rule it deems “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”⁵³ Using statutes like these, the President and his agencies effectively make laws governing vast swaths of American life—often with no meaningful input from Congress.⁵⁴

The veto protects that executive lawmaking status quo.⁵⁵ If Congress wants to stop an executive branch regulation from going into effect, it must comply with the Presentment Clause, which means the President can veto Congress’s efforts to override his unilateral laws.⁵⁶ For example, Congress passed twelve laws purporting to “nullify” regulations issued by the Biden Administration, and the President vetoed all of them.⁵⁷

The veto’s modern pro-lawmaking function is diametrically opposed to the Framers’ expectation that the veto would make lawmaking harder. That fact may lend support to those who argue that broad delegations of legislative power by Congress to the executive branch are inconsistent with the Framers’ original design. As a solution, some have proposed that courts apply the nondelegation doctrine to hold broad delegations of legislative power unlawful.⁵⁸ Others have suggested that courts at least ought to require Congress to delegate major powers with especially clear language.⁵⁹ Either approach helps to ensure that new laws comply with the Presentment Clause.

The Legislative Veto

The Congresses that enacted broad delegations of power to the executive branch attempted to retain primacy over lawmaking by giving themselves a new veto.⁶⁰ Hundreds of statutes between the 1930s and 1980s included a so-called legislative veto that empowered a single house of Congress to block an executive branch regulation.⁶¹

In INS v. Chadha (1983), the Supreme Court held that legislative vetoes violate the Presentment Clause.⁶² That decision had the effect of nullifying one-house veto provisions in hundreds of statutes delegating power to the executive branch—all while leaving the delegations in place.⁶³ Chadha thus represents an important part of the story of Congress losing its lawmaking powers to the executive branch.⁶⁴ Notably, in separate opinions in Chadha, Justices Powell and White predicted that this problem would come to pass.⁶⁵

The Line Item Veto

Another departure from the traditional lawmaking process was Congress’s attempt in 1996 to give the President the power to line-veto legislation. The Line Item Veto Act did this by giving the President a unilateral power to “cancel” certain spending provisions in bills passed by Congress.⁶⁶

The Supreme Court found the line veto was unconstitutional in Clinton v. New York (1998). The Court reasoned that the power to cancel spending provisions in a law was the effective equivalent of repealing a law.⁶⁷ Because the Line Item Veto Act authorized the President to repeal legislation unilaterally without going through the Constitution’s system for making law, the Court deemed it unconstitutional.

Open Questions

• Some scholars have argued that the Constitution permits Congress to delegate broad swaths of power to the executive branch.⁶⁸ If this is true, then the veto ensures that Congress will struggle to check executive lawmaking. As discussed, the Framers resuscitated the veto from British practice to make lawmaking harder. Does that paradox cast doubt on defenses of broad delegations?
• Few people question whether, as a formalist matter, INS v. Chadha was correctly decided,⁶⁹ but one-house veto provisions were included in bills that delegated broad legislative powers to the executive branch. By invalidating one-house vetoes while leaving the corresponding delegations in place, was Chada selectively formalist?⁷⁰ If courts leave broad delegations in place for non-formalist reasons, should the Supreme Court restore one-house-veto provisions for non-formalist reasons?
• Members of Congress who worry about the transfer of legislative power from Congress to the executive branch have offered a potential solution: the Regulations from the Executive in Need of Scrutiny (REINS) Act.⁷¹ This bill would require Congress to vote affirmatively (with no filibuster) on defined “major” executive branch regulations before they can take effect. Do you support this bill?

1. H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law 14, 54–55 (3d. ed. 1972). ↩︎
2. Richard A. Watson, Origins and Early Development of the Veto Power, 7 Presidential Stud. Q. 401, 405 (1987). ↩︎
3. Joseph Chitty, Jr., A Treatise on the Law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject 74 (1820). ↩︎
4. 1 Blackstone 250. ↩︎
5. William Everett, The Last Royal Veto, 25 Procs. Mass. Hist. Soc’y 156, 158–61 (1889). ↩︎
6. David Hume, Political Essays 69 (Charles W. Hendel ed., 1992). ↩︎
7. Watson, at 404. ↩︎
8. Id. ↩︎
9. 1 Farrand’s 99. ↩︎
10. Charles M. Andrews, The Royal Disallowance, 24 Procs. Am. Antiquarian Soc’y 325 (1914). ↩︎
11. Oliver Morton Dickerson, American Colonial Government 1696–1765, at 227 (1912). ↩︎
12. Andrews, supra at 349. ↩︎
13. Dickerson, supra at 226–27. ↩︎
14. Andrews, supra at 349. ↩︎
15. Declaration of Independence ¶¶ 3, 4, 5; Richard Beeman, Plain, Honest Men: The Making of the American Constitution 137 (2009). ↩︎
16. Charles C. Thach, Jr., The Creation of the Presidency: A Study in Constitutional History 15 (Liberty Fund ed., 2007) (1923). ↩︎
17. S.C. Const. of 1776, art. VII. ↩︎
18. Eric Nelson, The Royalist Revolution 147–48 (2014). ↩︎
19. N.Y. Const. of 1776, art. III; Daniel J. Hulsebosch. Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830, at 175–80 (2005). ↩︎
20. Mass. Const. of 1780, ch. 1, § 1, art. II. ↩︎
21. 1 Farrand’s 21. ↩︎
22. Michael W. McConnell, The President Who Would Not Be King 45–46 (2020). ↩︎
23. 1 Farrand’s 97–98, 103. ↩︎
24. McConnell, supra at 46. ↩︎
25. 1 Farrand’s 99. ↩︎
26. Id. ↩︎
27. Id. at 100. ↩︎
28. Id. at 101. ↩︎
29. McConnell, supra at 44–45. ↩︎
30. 1 Farrand’s 94. ↩︎
31. Id. at 103, 108. ↩︎
32. Id. at 293, 300. ↩︎
33. Id. at 104. ↩︎
34. 2 Farrand’s 299. ↩︎
35. Id. at 300. ↩︎
36. Id. at 295, 301. ↩︎
37. Pauline Maier, Ratification 37 (2010). ↩︎
38. 2 Farrand’s 585. ↩︎
39. Id. ↩︎
40. Id. at 586. ↩︎
41. Id. ↩︎
42. Id. at 586–87. ↩︎
43. Id. at 583, 587. ↩︎
44. Mercy Otis Warren, Observations on the New Constitution, and on the Federal and State Conventions (1788), https://perma.cc/KA3Z-TQVW . ↩︎
45. Luther Martin’s Letter on the Federal Convention of 1787, in 1 Elliot’s 367. ↩︎
46. Id. at 379. ↩︎
47. Storing 2.7.49. ↩︎
48. Federalist No. 69 (Hamilton). ↩︎
49. Lawrence W. Reed, The Ten Best Presidential Vetoes in American History, Found. Econ. Educ. (July 24, 2018), https://perma.cc/C2Z7-3AMP. ↩︎
50. Vetoes, 1789 to Present, U.S. Senate, https://perma.cc/JQ6W-642V. ↩︎
51. Louis J. Capozzi III, In Defense of the Major Questions Doctrine, 100 Notre Dame L. Rev. 509, 512–13, 536–37, 552–62 (2025). ↩︎
52. Capozzi, In Defense, supra at 44–45. ↩︎
53. 29 U.S.C. § 652(8). ↩︎
54. City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). ↩︎
55. Capozzi, In Defense, supra at 47–48. ↩︎
56. Id. ↩︎
57. Vetoes by President Joseph R. Biden, Jr., U.S. Senate, https://perma.cc/5UXG-PFWX. ↩︎
58. Gundy v. United States, 588 U.S. 128, 149–79 (2019) (Gorsuch, J., dissenting); Ilan Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490 (2021); Michael B. Rappaport, A Two-Tiered and Categorical Approach to the Nondelegation Doctrine, in The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine 195 (Peter J. Wallison & John Yoo eds., 2022). ↩︎
59. West Virginia v. EPA, 597 U.S. 697, 735–42 (2022) (Gorsuch, J., concurring); Paul v. United States, 140 S.Ct. 342 (2019) (Kavanaugh, J., respecting denial of certiorari); Louis J. Capozzi III, The Past and Future of the Major Questions Doctrine, 84 Ohio State L.J. 191, 241–42 (2023). ↩︎
60. Capozzi, In Defense, supra at 554–55. ↩︎
61. Jonathan Adler & Chris Walker, Delegation and Time, 105 Iowa L. Rev. 1931, 1950–51 (2020). ↩︎
62. 462 U.S. 919, 951 (1983). ↩︎
63. Capozzi, In Defense, supra at 553–55. ↩︎
64. Id. ↩︎
65. Chadha, 462 U.S. at 960 (Powell, J., concurring); id. at 968 (White, J., dissenting). ↩︎
66. Line Item Veto Act, Pub. L. No. 104-130, § 2, 110 Stat. 1200, 1200–01 (1996) (codified at 2 U.S.C. § 691 (1994 ed., Supp. II)); Clinton v. New York, 524 U.S. 417, 436–41 (1998). ↩︎
67. Clinton, 524 U.S. at 438–39. ↩︎
68. Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 332–56 (2021). ↩︎
69. Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1100 (2022); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1, 30 (1994). ↩︎
70. William N. Eskridge & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523, 526–27 (1992). ↩︎
71. Regulations from the Executive in Need of Scrutiny Act of 2023, H.R. 227, 118th Cong. (2023). ↩︎