Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 14

by Paul S. Gillies, Esq.
RUMINATIONS
The Veto, The Override, and the Constitution
When a Governor objects to a piece of
legislation, the executive has three choic-
es—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 Gover-
nor’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 legis-
lature 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 an-
nounced. 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, Sec-
tion 7 of the federal constitution describes
the process at the national level. The two
sections are nearly identical in form and pro-
cess.
Between the time of the first gubernato-
rial veto in 1839 and the vetoes of Governor
Philip Scott in June and July of 2018, Ver-
mont Governors have exercised the pow-
er 152 times. 1 The Governor who used the
veto power most was Howard Dean with
21. James H. Douglas vetoed 18 bills, Mad-
eleine 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 overrid-
den, 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 Con-
stitution 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 exer-
cise of constitutional review. The judiciary
has judicial review, and its “veto” is abso-
lute, although the legislature can always en-
act a similar law that avoids the stated con-
stitutional defect. The legislature, for its
14
part, tries to avoid unconstitutional laws dur-
ing 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 Con-
stitution.
History of the Veto;
Absolute or Qualified Vetoes
Roman tribunes vetoed legislation by the
Senate to protect the plebians 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 Con-
stitution gives the crown an absolute veto
over the acts of Parliament. Queen Eliza-
beth 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 nec-
essary to exercise it since the time of William
III.” 4 In Federalist LXIX, Alexander Hamilton
described