In his first three-plus years in office, President Barack Obama exercised the presidential veto power only twice. Both vetoes involved relatively minor legislative matters and received little public attention. That Obama would veto only two bills during this time is hardly unexceptional, as vetoes are uncommon when the president's political party also controls Congress (Spitzer 1988, 76-78; the Democrats controlled both houses in 2009-11, and the Senate in 2011-13). An observer would scarcely guess that these two otherwise obscure vetoes were but the most recent instances of an ongoing constitutional struggle over what some view as an executive power grab extending back five decades.
Two Vetoes for the Price of One
Obama's first veto was of a defense appropriations spending bill that duplicated another he had signed into law earlier that month. The vetoed bill was a stop-gap spending bill that became unnecessary when the regular annual Pentagon appropriations bill was passed in time. On December 30, 2009, during Congress's Christmas recess, the president announced that he was pocket vetoing H.J. Res 64. Yet in pocket vetoing the bill, he also did something that, under the terms of the pocket veto power described in the Constitution, is impossible: he returned the pocket vetoed bill to the clerk of the House of Representatives. Obama (Woolley and Peters n.d.) explained his action in his veto message this way:
To leave no doubt that the bill is being vetoed as unnecessary legislation, in addition to withholding my signature, I am also returning H.J. Res. 64 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval. Despite the fact that Congress agreed with the substance of Obama's action--that is, the stop-gap spending bill was indeed unnecessary--the Democratic-controlled House nevertheless held a vote to override the veto, in order to demonstrate that it disagreed with Obama's veto tactic, dubbed a "protective return" pocket veto. As fellow Democrat and Obama loyalist Rep. David Obey (WI) said, "we do not consider it a pocket veto" because the House had designated the clerk to receive messages (as Obama noted in his veto message). An (unsuccessful) override vote was held, in Obey's (Grim 2010) words, "to demonstrate that in our judgment a pocket veto is not appropriate, that the president exercised [an] irregular veto and it should be treated as such." And in a rare moment of bipartisanship, Democratic House Speaker Nancy Pelosi and Republican Minority Leader John Boehner (Pelosi and Boehner 2010) signed a joint letter to Obama objecting to his use of this veto procedure.
Obama's second veto, on October 8, 2010, was also a protective return pocket veto. This time, the veto garnered more public attention--although news reports were laced with inaccuracies (1)--as H.R. 3808 was a bill that would have allowed mortgage foreclosure documents to be accepted across state lines. Obama opposed the bill on the grounds that the measure would make foreclosures too easy at a time when the home mortgage market and the economy were struggling to revive. The portion of Obama's veto message explaining his veto method was identical to that of his earlier veto message. Obama press spokesman Dan Pfeiffer (Pfeiffer 2010; see also Calmes 2010) offered this further explanation for Obama's action:
The longstanding view of the Executive Branch is that a pocket veto is appropriate in circumstances such as these, where the House is in recess.... the House's recess prevents the President from returning it there.... To avoid any doubt, however, and in keeping with past practice, the President made a protective return of the bill to the Clerk of the House of Representatives, so even if the House disagrees on the pocket veto issue, the House will treat the return of the bill with a statement of objections as a regular veto.
Again, the House held an override vote (the veto was sustained) to challenge the protective return procedure. Despite some brief controversy (Spitzer 2010a, 2010b), attention rapidly, and understandably, turned to other matters.
Far from a matter of mere constitutional arcania, the dispute over the virtually unknown (2) protective return pocket veto provides a singularly crystalline example of the manner in which executive power has grown. Shorn of the drama and visibility of the disputes over other constitutional powers, such as the war power, this case brings into sharp relief the inexorable and bipartisan nature of executive constitutional power accretion. In this essay, I first examine the veto power to establish the constitutional functioning of both the regular or return veto and the pocket veto. I then unearth and examine the invention and evolution of the so-called protective return pocket veto and its justification, and explain how an action beyond constitutional bounds has become accepted and justified by both Democratic and Republican presidents. Finally, I discuss the consequences of this power grab.
The History of the Veto: Regular versus Pocket
The Constitution provides the president with two kinds of vetoes in article I, section 7. The regular or return (sometimes also called qualified) veto is exercised when the president takes two steps: withholds executive signature and then returns the bill "with his Objections to that House in which it shall have originated." The bill is then subject to possible override by Congress. The pocket veto, by contrast, not only observes different and more circumscribed procedures, but has a different and more emphatic effect, because it is absolute--that is, the exercise of a pocket veto kills the legislation in question because there is no bill return and therefore no possibility of override. Congress's only alternatives to dealing with a pocket veto are to either stay in session for at least 10 days after the passage of a bill that may be subject to pocket veto, so that the bill can be returned to Congress, or start from scratch and repass the bill when Congress reconvenes. As the Constitution says, "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." The first part of this sentence states that if the president takes no action on bills presented by Congress, they become law automatically after 10 days. The necessity of this provision is evident, as presidents could otherwise halt bills by simply withholding their signature. This circumstance is then modified by the phrase, "unless the Congress by their Adjournment prevent its Return," in which case any bill not signed by the president is vetoed by pocket veto, even though it is not returned to Congress.
The very existence of the pocket veto would seem to contradict the sentiments of most of the Constitution's framers concerning the executive veto, because the pocket veto is, in its effect, an absolute veto, a power squarely opposed by most at the Constitutional Convention of 1787. Among others, James Madison, Roger Sherman, Pierce Butler, and Benjamin Franklin all spoke against an absolute veto for the president, fearing that it would gather too much power into the hands of the executive. The country's experience with the absolute veto was immediate and painful, as it had been used for decades by British monarchs and colonial governors to thwart colonial legislation and to leverage political concessions as a condition for approval of colonial legislation (Spitzer 1988, 8-10). To be sure, the absolute veto had several articulate champions, including Alexander Hamilton, James Wilson, George Read, and Gouverneur Morris. Yet in votes at the Constitutional Convention on June 4 and August 7, the proposal was emphatically rejected: 0-10, and 1-9 (votes were cast by state delegations; Farrand 1966, 1:95; 2:200). Thus, the verdict of the convention was decisively against an absolute veto. How, then, is its presence in the Constitution in the form of the pocket veto explained?
There was no debate during the convention on what later came to be called the pocket veto, (3) yet the motive for its inclusion is clear. Quite simply, the pocket veto power was inserted to guard against the possibility that Congress could pass a bill but then quickly adjourn as a way of avoiding a veto before the president had a chance to return the bill, as the regular veto can only be executed if Congress receives the returned bill along with the president's objections to it. Joseph Story noted in 1833 that the pocket veto was necessary precisely because it prevented Congress from circumventing a regular veto. After quoting from the constitutional provision describing the regular veto process, Story (1987, 324) observed that "if this clause stood alone, congress might, in like manner, defeat the due exercise of his qualified negative by a termination of the session, which would render it impossible for the president to return the bill. It is therefore added, 'unless the congress, by their adjournment, prevent its return, in which case it shall not be a law.' " Thus, the pocket veto was inserted to prevent the prospect of a bill automatically becoming law despite the president's objections but without the president's signature after 10 days (remembering that signature-less bills automatically become law after 10 days when Congress is in session).
One additional insight concerning the pocket veto case can be culled from the constitutional debates. In Document VIII of the Committee of Detail (a committee of five convened to hammer out constitutional language at the Constitutional Convention), the first language of what became the pocket veto clause called for no pocket veto at all. Instead, it called for legislation that could not be return-vetoed to the house of origin...