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How Obama can use the power of the veto and still avoid being nicknamed 'President No'

Will the power to say 'no' fortify or cripple President Obama's legacy?

Congress' expected final passage of the controversial Keystone XL pipeline bill sets up the first square veto confrontation between President Obama and the new Republican-controlled Congress. It marks the first time in his presidency when significant measures he opposes are likely to land on his desk instead of dying in the formerly Democratic-controlled Senate.

Even with the help of Democratic-led filibusters in the Senate, this will probably be the first of many such confrontations, marking a significant change in Obama's legislative strategy. After all, in his first six years, Obama vetoed only two bills, both relatively minor. Now, however, he faces the prospect of acquiring the moniker “President No,” given a Congress under full control by the opposing party. How will this change in strategy bode for his presidency and his legacy?

The answer proves to be more complicated than punditry suggests.

Today, the presidential veto is viewed as simply granting the power to say “no.” But the founding fathers knew better. To them, the presidential veto was the “revisionary power.” Early drafts of the Constitution referenced “revision” in describing the veto process but that phrasing wasn't in the document's final version. James Madison referred to the veto and Congress' subsequent consideration as “separate revision.” To them, the veto was more than the power to say “no” — it was a final chance for constructive improvement of legislation by both branches.

Americans want their presidents to be leaders, even when they disagree with the paths the presidents are taking. Presidents can use the veto power prolifically and effectively. Historically, presidential vetoes are sustained — that is, not overridden by Congress — about 93% of the time; for major legislation, more than 80% of vetoes stick.

The most prolific user of the veto by total numbers was Franklin D. Roosevelt. The key to his success? He continued to advance a positive agenda, even as he ginned up political veto melodrama, as in 1935 when he announced with great fanfare that he would deliver his veto of a veterans' bonus bill personally to a joint session of Congress. He also read his veto message on national radio.

However, a veto strategy can either fortify or cripple a presidency. Presidents cannot govern effectively by veto alone. Those who have tried, from Andrew Johnson to Gerald Ford, have fared poorly, garnering both congressional ire and the country's scorn, precisely because they advanced no positive policy alternatives. In Ford's case, his 66 vetoes were his main legislative accomplishment; his rapid ascension to the presidency provided no opportunity to formulate his own agenda. As one Ford aide said, his many vetoes “eroded the president's already limited base of support.”

In Obama's case, his opposition to Keystone stands athwart both public approval and bipartisan congressional support, seeming to presage Obama's first step down the road to President No. Yet Obama's State of the Union address, with its multiple veto threats, suggests a different path.

Obama issued more veto threats in his speech than any president since World War II, warning Congress that he would veto any bill that would curtail the Affordable Care Act, unravel Dodd-Frank banking regulations, trim his executive actions on immigration or impose new sanctions
on Iran. He also suggested vetoes for bills that would constrict measures that expanded economic opportunity. Before the speech, he threatened to veto legislation that attempted to curtail environmental protections or access to abortion.

The common thread is that these are all efforts by Congress to roll back existing policies enacted or advanced by Obama. Unlike in the case of Keystone, his vetoes of these measures would not simply be his “no” to a new policy, but his defense of hard-won policy objectives that also find public support — his way of saying “yes” in the face of Congress' “no.”

When Obama's veto defense of these policies is combined with the rest of his speech advocating new and popular policies — such as raising the minimum wage, giving free access to a community college education, increasing child-care affordability, and guaranteeing paid sick leave for workers and pay equity for women — he has taken the political offensive. Even if, as expected, Congress passes none of these measures, Obama has made clear what he is for. That fact, combined with his past legislative and executive accomplishments, enable him to retain the strategic high ground, and the mantle of positive leader, avoiding the stigma of President No.

This underscores the Republicans' enduring problem of governance: It is clear what they are against — but what are they for? If history reveals anything, it is that, regardless of ideology or party, effective governance is predicated on an affirmative agenda. If congressional Republicans spend the next two years enacting bill after bill designed to dismantle policies that have been enacted, without offering any positive programs of their own, Obama need not worry about his veto record or image as leader. Republicans will have reassured their base, but also pushed 270 electoral votes further from their grasp in 2016.

Robert Spitzer chairs the political science department at the State University of New York in Cortland. His five books on the presidency include "The Presidential Veto."

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