Presentment Clause

Original design: a qualified, not absolute, negative

The Convention's veto debate began June 4, 1787 with Gerry's motion for "a right to negative any Legislative act which shall not be afterwards passed by" both houses. Wilson and Hamilton then moved to strike the override language entirely, giving the Executive an absolute negative like the British Crown's. The Convention rejected an absolute negative unanimously, 0 ayes–10 noes.

Madison's Notes on the Convention (distinct from the bare Journal tallies below) preserve the floor speeches behind that unanimous vote in full. Franklin gave the debate's fullest and most concrete speech, recounting Pennsylvania's experience under a proprietary governor whose negative was "constantly made use of to extort money" — no law could pass "without a private bargain with him" — with two details not carried by any paraphrase already on this page: the governor withholding assent to frontier defense measures during an actual Indian raid until his own estate was exempted from taxation, and bribery of Parliament, not a used royal veto, as Franklin's own explanation for why the British Crown's negative had gone unexercised since the Revolution:

"When the Indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got till it was agreed that his estate should be exempted from taxation; so that the people were to fight for the security of his property, whilst he was to bear no share of the burden... The bribes and emoluments now given to the members of Parliament rendered it unnecessary, every thing being done according to the will of the ministers." — Benjamin Franklin, Notes on the Convention, 4 June 1787

Franklin warned an unchecked veto would let the Executive accumulate "power and money" until the legislature fell into "compleat subjection to the will of the Executive." George Mason answered in the debate's most quoted speech against any negative broader than a suspending one, framing the stakes as a monarchy under a different name:

"We are, Mr. Chairman, going very far in this business. We are not indeed constituting a British government, but a more dangerous monarchy — an elective one... Do gentlemen mean to pave the way to hereditary monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do, I venture to tell them, they are mistaken. The people never will consent." — George Mason, Notes on the Convention, 4 June 1787

Franklin closed with a second, comparative-government anecdote distinct from his Pennsylvania story — the Dutch stadtholderate's slide from a grateful people's gift to William of Orange into a hereditary near-monarchy sustained by insurrection — offered as the general pattern he thought any unchecked executive negative would eventually repeat: "the executive will be always increasing here, as elsewhere, till it ends in a monarchy."

Butler then moved a milder alternative to an absolute negative — a bare suspending power, with no override mechanism named, seconded by Franklin. Gerry's one-line objection explains why even this failed unanimously:

"the power of suspending night [sic] do all the mischief dreaded from the negative of useful laws, without answering the salutary purpose of checking unjust or unwise ones." — Elbridge Gerry, Notes on the Convention, 4 June 1787

The Convention then adopted, 8 ayes–2 noes, Gerry's qualified negative — overridable by two-thirds of each House.

The Convention also repeatedly debated, and repeatedly rejected, joining the judiciary to the Executive in a "Council of Revision" with shared veto power — a model then used in New York. Wilson and Madison pressed the proposal three times (June 4, June 6, July 21); it failed 3 ayes–8 noes on June 6, and again on July 21. Gerry argued the mixture would make "Statesmen of the Judges" and would "blend together the Judiciary & Executive departments," binding them "in an offensive and defensive alliance agst. the Legislature." Story's later Commentaries summarized the two reasons for rejecting judicial participation: the judges "might receive an improper bias from having given a previous opinion in their revisory capacity," and their involvement risked "a dangerous combination... cemented between the executive and judiciary departments" that would erode "public confidence in their impartiality, independence, and integrity."

The Convention's own Journal, reprinted by Elliot, independently confirms both vote counts by state. On 4 June, after Wilson and Hamilton's motion to strike the override language and Butler's motion for a merely suspensive negative both failed unanimously, Gerry's qualified-negative resolution passed:

"Resolved, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two third parts of each branch of the national legislature." . . . Yeas: Massachusetts, New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, 8. Nays: Connecticut, Maryland, 2. — Journal of the Federal Convention, 4 June 1787, quoted in Elliot's Debates vol. 1

On 6 June, Wilson and Madison's renewed motion to add "a convenient number of the national judiciary" to the executive's negative — the council-of-revision idea again — failed:

Yeas: Connecticut, New York, Virginia, 3. Nays: Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, 7. — Journal of the Federal Convention, 6 June 1787, quoted in Elliot's Debates vol. 1

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Madison's own Notes on the Convention, reprinted in Elliot's Debates vol. 5, record the same 6 June vote with an eighth state in the negative column: "Connecticut, New York, Virginia, ay, 3; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, 8." Both sources agree on the 3 ayes and the motion's defeat; the Journal (above) omits North Carolina from the negative side, where Madison's Notes include it. The extract does not explain the discrepancy, and no reconciliation is invented here.

Madison's own speech for this 6 June renewal of the motion — new to the wiki in full — argued that a republican executive lacks the "settled preëminence," "weight of property," and personal stake against corruption an hereditary magistrate would have, and so needs the judiciary's added weight to defend itself against legislative encroachment; he denied the pairing improperly mixed the departments, since England's own model already let the House of Lords, its "supreme tribunal of justice," sit as part of the legislature. Gerry, King, Pinckney, and Dickinson each answered on distinct grounds — impartiality lost by association, unity's responsibility rationale applying equally to revision, redundancy given the departments' existing power to consult each other informally, and responsibility outweighing any benefit from a judicial partner — before the motion failed a second time.

The final council-of-revision debate, 21 July 1787, in Madison's own words

The essay's brief 21 July date-and-lineup note (above) compresses a full floor debate Madison's own Notes preserve in detail — the third and final time the council-of-revision proposal reached the Convention floor. James Wilson renewed the motion, arguing judges could flag laws that were "unjust... unwise... dangerous... destructive," even where not so unconstitutional as to justify judicial nullification outright — a category of legislative defect he thought the judiciary's ordinary expository power could not reach on its own. James Madison seconded and gave the fullest defense of the pairing as an auxiliary precaution reinforcing separation of powers rather than blending it, naming four distinct beneficiaries:

"If any solid objection could be urged against the motion, it must be on the supposition that it tended to give too much strength, either to the executive, or judiciary... It was much more to be apprehended, that, notwithstanding this coöperation of the two departments, the legislature would still be an overmatch for them. Experience in all the states had evinced a powerful tendency in the legislature to absorb all power into its vortex." — James Madison, Notes on the Convention, 21 July 1787

Nathaniel Gorham, Elbridge Gerry, and Caleb Strong answered on three distinct grounds — Gorham, that judges possess no special "knowledge of the mere policy of public measures"; Gerry, that the pairing would make "statesmen of the judges" and improperly combine departments each should defend separately; Strong, that lawmaking and law-exposition should stay distinct because judges who helped write a law might later be "influenced by the part they had taken" when construing it. Luther Martin pressed a distinct numerical objection: judges already hold "a negative on the laws" in their expository capacity, so adding them to the executive's revisionary power gives them "a double negative." Col. Mason answered Martin directly, distinguishing the two checks by scope — as judges, courts can void only laws "plainly" unconstitutional; the revisionary power would let them flag laws merely "unjust, oppressive, or pernicious" that fall short of that bar. Gouverneur Morris closed with a property-rights analogy distinct from Madison's four-beneficiary case:

"As well might it be said that if three neighbors had three distinct farms, a right in each to defend his farm against his neighbors, tended to blend the farms together." — Gouverneur Morris, Notes on the Convention, 21 July 1787

The motion failed, 3-4-2 (Connecticut, Maryland, Virginia ay; Massachusetts, Delaware, North Carolina, South Carolina no; Pennsylvania, Georgia divided; New Jersey absent). The qualified veto itself — two-thirds of each branch to override — then passed nem. con., immediately after the council-of-revision alternative's final defeat. See Elliot's Debates (Vol. V).

Hamilton later distinguished the adopted "qualified negative of the President" from the English model it deliberately avoided: it "differs widely from" the "absolute negative of the British sovereign" and instead "tallies exactly with the revisionary authority of the Council of revision" used in New York and Massachusetts — except that the President "would possess singly" what the New York Governor "shares with the Chancellor and Judges." *The Federalist No. 69* (Hamilton). — Records of the Federal Convention (Madison, 4, 6 June; 21 July 1787); Joseph Story, Commentaries on the Constitution 2:§§878, 886 (1833)

An unsigned 1830s-40s editorial essay Elliot appended to Elliot's Debates vol. IV, "A Short History of the Veto," independently narrates the same floor debate with vote counts drawn from the Convention Journal, and adds detail this page did not otherwise carry: Charles Pinckney's rival draft of 29 May 1787 located the veto in the executive alone and already used the two-thirds override mechanic that Article I §7 ultimately adopted:

"Every bill which shall have passed the legislature shall be presented to the President of the United States for his revision. If he approve it, he shall sign it; but if he does not approve it, he shall return it, with his objections, to the house it originated in; which house, if two thirds of the members present, notwithstanding the President's objections, agree to pass it, shall send it to the other house... where, if two thirds of the members present also agree to pass it, the same shall become a law." — Charles Pinckney's draft, 29 May 1787, quoted in "A Short History of the Veto"

The essay dates the final Wilson-Gouverneur Morris attempt to revive the council of revision to 21 July 1787 (Ellsworth, Mason, Madison, and Morris for it; Gorham, Gerry, Strong, Luther Martin, and Rutledge against — lost), and records a last, otherwise-undocumented-on-this-page revival by Madison himself on 15 August 1787, after the Committee of Detail had already placed the veto in Article VI §13 of its draft: Madison moved again to unite the Supreme Court's judges with the President in revising laws; Wilson and Mercer supported him, Pinckney opposed, and it lost 3 states to 8 — the fourth and final defeat of the judges-in-revision idea, one month before signing.

Story's Commentaries: why a qualified negative, and how much override should take

Story devotes a long stretch of Chapter 13 to justifying the qualified veto against two rival designs the Convention considered and rejected: an absolute negative on the English model, and no negative at all. His argument runs on three grounds.

First, self-defense of the executive department. A written allocation of power on parchment cannot protect the weaker branch by itself:

"[T]here is a natural tendency in the legislative department to intrude upon the rights, and to absorb the powers of the other departments of government. A mere parchment delineation of the boundaries of each is wholly insufficient for the protection of the weaker branch, as the executive unquestionably is; and hence there arises a constitutional necessity of arming it with powers for its own defense." — Joseph Story, Commentaries on the Constitution § 881 (1833)

Second, a check on rash or faction-driven legislation — reviewed by an officer with a different constituency and a different timetable than any legislator:

"[T]he power is important, as an additional security against the enactment of rash, immature, and improper laws. It establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements... He is the representative of the whole nation in the aggregate; they are the representatives only of distinct parts; and sometimes of little more than sectional or local interests." — Joseph Story, Commentaries on the Constitution §§ 882-883 (1833)

Third — and, in Story's view, the deepest reason — the veto's value lies in its silent, rarely-exercised deterrent effect, not in how often it is actually used:

"[O]ne of the greatest benefits of such a power is, that its influence is felt, not so much in its actual exercise, as in its silent and secret energy as a preventive. It checks the intention to usurp, before it has ripened into an act." — Joseph Story, Commentaries on the Constitution § 884 (1833)

Story marshals comparative evidence for this last point: the English Crown's absolute negative "has not been once exercised since the year 1692," and by 1833 no American president's qualified veto had ever been overridden by the constitutional two-thirds. He also records — as a design the Convention considered and pointedly rejected — the French Constitution of 1791's suspensive royal veto (overridable simply by two successive legislatures repassing the same bill), which Story judges inferior to the American design and which in any event "was prostrated in the dust" within a year of its adoption (§ 880).

The two-thirds vs. three-fourths override debate

Story also defends the Convention's final choice of a two-thirds override (after an intervening vote for three-fourths was reversed) as the more defensible number on both practical and majoritarian grounds:

"[T]he departure from the general rule, of the right of a majority to govern, ought not to be allowed but upon the most urgent occasions; and an expression of opinion by two thirds of both houses in favor of a measure certainly afforded all the just securities, which any wise, or prudent people ought to demand." — Joseph Story, Commentaries on the Constitution § 887 (1833)

He warns that a three-fourths threshold risked the opposite defect: a bare majority of electoral votes (itself possibly a minority of the whole people) could seat a president whose single veto, unremovable short of three-fourths, "the voice of two thirds of the states and two thirds of the people might be permanently disregarded during a whole administration" (§ 887).

Ratification-era public defense: the North Carolina convention, 26 July 1788

The Convention-floor material above documents the qualified veto's drafting history among the delegates who wrote it. The North Carolina ratifying convention's 26 July 1788 reading of the 2d clause of §7 is the wiki's first ratification-era public defense of the clause, and James Iredell gave it in separation-of-powers terms distinct from Hamilton's Federalist No. 69 framing already on this page (both defend a qualified rather than absolute negative, but Iredell argues from the President's structural vulnerability relative to a British monarch, not from a comparison to the New York or Massachusetts councils of revision):

"One great alteration proposed by the Constitution — and which is a capital improvement on the Articles of Confederation — is, that the executive, legislative, and judicial powers should be separate and distinct. The best writers, and all the most enlightened part of mankind, agree that it is essential to the preservation of liberty, that such distinction and separation of powers should be made. But this distinction would have very little efficacy if each power had no means to defend itself against the encroachment of the others." — James Iredell, North Carolina Convention, 26 July 1788

Iredell then explained why the American President could not be given the same absolute negative as the British Crown — the President's institutional weakness, not any distrust of the office, requires a check that stops short of an outright veto:

"By the proposed Constitution, the President is of a very different nature from a monarch... In a republican government, it would be extremely dangerous to place it in the power of one man to put an absolute negative on a bill proposed by two houses, one of which represented the people, and the other the states of America." — James Iredell, North Carolina Convention, 26 July 1788

He then walked the clause's actual mechanics — the President may only "respectfully offer his reasons" for reconsideration, not block a bill outright, and both his objections and the resulting vote are recorded on the Journal for public accountability — closing with a functional account of why a rarely-exercised qualified veto can still improve legislation without defeating the majority that passed it:

"It might frequently happen that, where a bare majority had carried a pernicious bill, if there was an authority to suspend it, upon a cool statement of reasons, many of that majority, on a reconsideration, might be convinced, and vote differently... It is a strong guard against abuses in all, that the President's reasons are to be entered at large on the Journals, and, if the bill passes notwithstanding, that the yeas and nays are also to be entered." — James Iredell, North Carolina Convention, 26 July 1788

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Iredell's speech independently reaches the same "silent, rarely-exercised deterrent" theory of the veto's value that Story's Commentaries § 884 states four decades later (above) — "It might frequently happen... on a reconsideration, might be convinced, and vote differently" anticipates Story's "its influence is felt, not so much in its actual exercise, as in its silent and secret energy as a preventive." Neither source cites the other; the convergence is independent.

Founding-era practice: Washington's first veto (1792)

The clause's first exercise came less than three years after the First Congress convened. On 5 April 1792, Washington vetoed the Representation (apportionment) Bill — a veto Jefferson, then Secretary of State, recorded from inside the deliberation in his own diary. Washington, Jefferson, Attorney General Randolph, and Madison privately agreed beforehand that the bill's apportionment method violated the Constitution as the framing generation itself had understood it, before the veto was exercised:

"I had before given him my opinion, in writing, that the method of apportionment was contrary to the Constitution. He agreed that it was contrary to the common understanding of that instrument, and to what was understood at the time by the makers of it; that yet it would bear the construction which the bill put... He went home, sent for Randolph, the attorney-general, desired him to get Mr. Madison immediately, and come to me; and if we three concurred in opinion, that he would negative the bill." — Thomas Jefferson, diary entry, 9 April 1792, quoted in "A Short History of the Veto," Elliot's Debates vol. IV

This is the wiki's earliest surviving instance of framing-generation officials applying an originalist-style "common understanding... at the time by the makers of it" test to a live constitutional question in office, and it predates Marbury's judicial-review holding by eleven years. The same essay records 22 total vetoes through 1842 (Washington 2, Madison 6, Monroe 1, Jackson 9, Tyler 4) against "upwards of 6,000" acts approved, and notes that by the 1830s-40s several states — New York, New Hampshire, Massachusetts, Pennsylvania, Georgia, Louisiana, Mississippi, Missouri, and Maine — had adopted a gubernatorial veto on the federal, two-thirds-override model, while others allowed a governor's objection to be overridden by a bare majority or gave no veto at all.

Approval

A President who approves a bill need only sign it — no written word "approved" or date is required. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). A bill becomes law on the date the President approves it; absent a specified effective date, it also takes effect that day.

The ten-day window

The President has ten days (Sundays excepted) after a bill is presented to sign or return it. Failure to act has different consequences depending on whether Congress remains in session:

• Congress in session: If the President does not sign or veto within ten days, the bill becomes law automatically.
• Congress adjourned: If Congress adjourns before the ten days expire and the President does not sign, the bill does not become law — the pocket veto.

The President who wishes to approve a bill is not required to sign it on a day when Congress is in session; he may sign within the ten-day window even if it extends past the adjournment date. La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899).

Veto power

The President may veto a bill by returning it, with objections, to the originating chamber within the ten-day window while Congress is in session. Congress may override a veto by a two-thirds vote of each chamber. The Court has held that the two-thirds requirement refers to two-thirds of a quorum. Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919).

Once a bill becomes law, the President has no authority to repeal it. The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874).

The Clause serves two functions: it gives the President "suitable opportunity to consider the bills presented to him," and gives Congress "suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto." Wright v. United States, 302 U.S. 583 (1938).

Pocket veto

If Congress adjourns while a bill awaits the President's signature and the President does not sign within the ten-day window, the bill is pocket vetoed and does not become law. Congress cannot override a pocket veto; it must reintroduce and re-enact the bill.

In The Pocket Veto Case (1929), the Court defined "adjournment" broadly: the relevant question is not whether Congress has adjourned finally but whether the adjournment "prevents" the President from returning a vetoed bill. An interim inter-session adjournment qualifies, not just a final sine die adjournment. Because neither house was in session to receive the bill, the pocket veto was valid.

The Court also held that the President cannot return a vetoed bill to an "agent" of Congress during adjournment — even if Congress had authorized such an agent — because delivery to an agent does not satisfy the constitutional requirement of return to the house of origin.

Gap note: The Constitution Annotated's full discussion of Wright v. United States (1938), which falls just before its line-item veto sub-section (C2.3), is not summarized here. What is known: Wright held that an intra-session recess (one house in session, the other not) did not prevent return because the Secretary of the Senate could accept the returned bill. This creates tension with The Pocket Veto Case (1929).

Line-item veto

Congress cannot delegate to the President a line-item veto — the power to cancel individual spending items or tax benefits from a bill after signing it. Clinton v. City of New York, 524 U.S. 417 (1998), struck down the Line Item Veto Act of 1996 on Presentment Clause grounds.

The Court held that once the President signed the bills they became law. His subsequent cancellations therefore amounted to the partial repeal of enacted statutes. The Constitution requires statutory repeals to follow the same "single, finely wrought and exhaustively considered, procedure" as enactment. Nothing in the Constitution authorizes the President to amend or repeal a statute unilaterally. The Court read constitutional silence plus 200 years of historical practice as "an express prohibition." See Clinton v. City of New York.

Legislative veto

A legislative veto is a statutory mechanism by which Congress (or one of its chambers) retains power to nullify executive action without passing new legislation — and thus without bicameralism and presentment. INS v. Chadha, 462 U.S. 919 (1983), held such provisions unconstitutional.

The test for whether a congressional act requires bicameralism and presentment turns on substance, not form: an action is legislative if it "contain[s] matter which is properly to be regarded as legislative in its character and effect" — that is, if it "ha[s] the purpose and effect of altering the legal rights, duties and relations of persons . . . outside the Legislative Branch." The Court also read the Constitution as making only "narrow, explicit, and separately justified" exceptions to bicameralism-plus-presentment (impeachment, treaty consent, etc.); all other exercises of legislative power must comply.

Chadha reached one-house vetoes; the Court quickly confirmed the same logic invalidates two-house vetoes and committee vetoes. Bowsher v. Synar, 478 U.S. 714 (1986), applied Chadha's principle in holding the Balanced Budget Act unconstitutional on related grounds — Congress had effectively retained ongoing control over executive action. See INS v. Chadha; Bowsher v. Synar.

Post-Chadha, Congress uses substitute devices — "report-and-wait" provisions (new rules reported to Congress before taking effect, leaving Congress time to pass blocking legislation) and mandatory consultation steps — that preserve oversight without a unilateral veto.

Sub-concept: Orders, Resolutions, and Votes Clause (Art. I §7 cl. 3)

Art. I §7 cl. 3 extends the presentment requirement beyond bills to "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary." The clause prevents evasion of the veto by relabeling legislation as something other than a bill. "Necessary" means necessary to have the force of law — preliminary votes and concurrent resolutions expressing the "sense" of Congress need not be presented.

The one major exception settled by practice and judicial decision: resolutions proposing constitutional amendments do not require presidential presentment. Hollingsworth v. Virginia, 3 U.S. 378 (1798), upheld the Eleventh Amendment despite the absence of presidential approval. All subsequent cases affirm the same. See Hollingsworth v. Virginia.

Background: the word "veto"

Not originalist evidence for the clause's meaning — the Convention itself never uses the word "veto," speaking instead of a "negative" — but useful background on a term ratification-era readers would have recognized from classical education. A third, unsigned 1830s-40s essay in Elliot's Debates vol. IV, "Historical Memoranda of the Veto," traces the Latin veto ("I forbid") to the Roman plebeian tribunate, created after the plebeians' secession to the Mons Sacer:

"Their power was at first limited, but at the same time extraordinary. It was preventive, rather than enforcing... and consisted in the utterance of but one word, and that one, 'Veto,' (I forbid.)... No reasons were required of them; no one dared oppose them; their Veto was supreme!" — "Historical Memoranda of the Veto," Elliot's Debates vol. IV

The essay traces the tribunate's later corruption into an instrument of the emperors — Augustus had "the tribuneship conferred on himself" — and surveys comparative veto practice as of the 1830s-40s: Britain's royal negative unused since 1692; Norway's king, overridable only by three successive storthings repassing the same measure; France's 1791 constituent-assembly veto, which "proved [Louis XVI's] ruin"; and Poland's liberum veto ("Nie Pozwalam"), by which any single diet member could block any measure — a design Russia preserved after partition specifically to prevent effective Polish legislation.

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The comparative history is 1830s-40s antiquarian scholarship, not founding-era or ratification-era source material; it illustrates what an educated contemporary reader might have known about the term, not what the Convention itself argued from.