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Veto Message

June 23, 1879

To the House of Representatives:

After careful examination of the bill entitled "An act making appropriations for certain judicial expenses," I return it herewith to the House of Representatives, in which it originated, with the following objections to its approval:

The general purpose of the bill is to provide for certain judicial expenses of the Government for the fiscal year ending June 30, 1880, for which the sum of $2,690,000 is appropriated. These appropriations are required to keep in operation the general functions of the judicial department of the Government, and if this part of the bill stood alone there would be no objection to its approval. It contains, however, other provisions, to which I desire respectfully to ask your attention.

At the present session of Congress a majority of both Houses, favoring a repeal of the Congressional election laws embraced in title 26 of the Revised Statutes, passed a measure for that purpose, as part of a bill entitled "An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1880, and for other purposes." Unable to concur with Congress in that measure, on the 29th of May last I returned the bill to the House of Representatives, in which it originated, without my approval, for that further consideration for which the Constitution provides. On reconsideration the bill was approved by less than two-thirds of the House, and failed to become a law. The election laws therefore remain valid enactments, and the supreme law of the land, binding not only upon all private citizens, but also alike and equally binding upon all who are charged with the duties and responsibilities of the legislative, the executive, and the judicial departments of the Government.

It is not sought by the bill before me to repeal the election laws. Its object is to defeat their enforcement. The last clause of the first section is as follows:

And no part of the money hereby appropriated is appropriated to pay any salaries, compensation, fees, or expenses under or in virtue of title 26 of the Revised Statutes, or of any provision of said title.

Title 26 of the Revised Statutes, referred to in the foregoing clause, relates to the elective franchise, and contains the laws now in force regulating the Congressional elections.

The second section of the bill reaches much further. It is as follows:

Sec. 2. That the sums appropriated in this act for the persons and public service embraced in its provisions are in full for such persons and public service for the fiscal year ending June 30, 1880; and no Department or officer of the Government shall during said fiscal year make any contract or incur any liability for the future payment of money under any of the provisions of title 26 of the Revised Statutes of the United States authorizing the appointment or payment of general or special deputy marshals for service in connection with elections or on election day until an appropriation sufficient to meet such contract or pay such liability shall have first been made by law.

This section of the bill is intended to make an extensive and essential change in the existing laws. The following are the provisions of the statutes on the same subject which are now in force:

Sec. 3679. No Department of the Government shall expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract for the future payment of money in excess of such appropriations.

Sec. 3732. No contract or purchase on behalf of the United States shall be made unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year.

The object of these sections of the Revised Statutes is plain. It is, first, to prevent any money from being expended unless appropriations have been made therefor, and, second, to prevent the Government from being bound by any contract not previously authorized by law, except for certain necessary purposes in the War and Navy Departments.

Under the existing laws the failure of Congress to make the appropriations required for the execution of the provisions of the election laws would not prevent their enforcement. The right and duty to appoint the general and special deputy marshals which they provide for would still remain, and the executive department of the Government would also be empowered to incur the requisite liability for their compensation. But the second section of this bill contains a prohibition not found in any previous legislation. Its design is to render the election laws inoperative and a dead letter during the next fiscal year. It is sought to accomplish this by omitting to appropriate money for their enforcement and by expressly prohibiting any Department or officer of the Government from incurring any liability under any of the provisions of title 26 of the Revised Statutes authorizing the appointment or payment of general or special deputy marshals for service on election days until an appropriation sufficient to pay such liability shall have first been made.

The President is called upon to give his affirmative approval to positive enactments which in effect deprive him of the ordinary and necessary means of executing laws still left in the statute book and embraced within his constitutional duty to see that the laws are executed. If he approves the bill, and thus gives to such positive enactments the authority of law, he participates in the curtailment of his means of seeing that the law is faithfully executed, while the obligation of the law and of his constitutional duty remains unimpaired.

The appointment of special deputy marshals is not made by the statute a spontaneous act of authority on the part of any executive or judicial officer of the Government, but is accorded as a popular right of the citizens to call into operation this agency for securing the purity and freedom of elections in any city or town having 20,000 inhabitants or upward. Section 2021 of the Revised Statutes puts it in the power of any two citizens of such city or town to require of the marshal of the district the appointment of these special deputy marshals. Thereupon the duty of the marshal becomes imperative, and its nonperformance would expose him to judicial mandate or punishment or to removal from office by the President, as the circumstances of his conduct might require. The bill now before me neither revokes this popular right of the citizens, nor relieves the marshal of the duty imposed by law, nor the President of his duty to see that this law is faithfully executed.

I forbear to enter again upon any general discussion of the wisdom and necessity of the election laws or of the dangerous and unconstitutional principle of this bill--that the power vested in Congress to originate appropriations involves the right to compel the Executive to approve any legislation which Congress may see fit to attach to such bills, under the penalty of refusing the means needed to carry on essential functions of the Government. My views on these subjects have been sufficiently presented in the special messages sent by me to the House of Representatives during their present session. What was said in those messages I regard as conclusive as to my duty in respect to the bill before me. The arguments urged in those communications against the repeal of the election laws and against the right of Congress to deprive the Executive of that separate and independent discretion and judgment which the Constitution confers and requires are equally cogent in opposition to this bill. This measure leaves the powers and duties of the supervisors of elections untouched. The compensation of those officers is provided for under permanent laws, and no liability for which an appropriation is now required would therefore be incurred by their appointment. But the power of the National Government to protect them in the discharge of their duty at the polls would be taken away. The States may employ both civil and military power at the elections, but by this bill even the civil authority to protect Congressional elections is denied to the United States. The object is to prevent any adequate control by the United States over the national elections by forbidding the payment of deputy marshals, the officers who are clothed with authority to enforce the election laws.

The fact that these laws are deemed objectionable by a majority of both Houses of Congress is urged as a sufficient warrant for this legislation.

There are two lawful ways to overturn legislative enactments. One is their repeal; the other is the decision of a competent tribunal against their validity. The effect of this bill is to deprive the executive department of the Government of the means to execute laws which are not repealed, which have not been declared invalid, and which it is therefore the duty of the executive and of every other department of Government to obey and to enforce.

I have in my former message on this subject expressed a willingness to concur in suitable amendments for the improvement of the election laws; but I can not consent to their absolute and entire repeal, and I can not approve legislation which seeks to prevent their enforcement.


Rutherford B. Hayes, Veto Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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