January 8, 2008 – Pundits and pols who have been tracking President Bush’s constitutional transgressions can add another to the list: his Dec. 28 “pocket veto” of the massive defense spending bill. Instead of issuing a regular veto, which allows Congress the opportunity to override if it can muster the votes, Bush stated that he needed to pocket veto the bill — a power the Constitution says may only be used when “Congress by their Adjournment prevent [the bill’s] Return.” Bush argued that he was “prevented” from “returning” the bill to Congress because the House had adjourned.
But Bush was being disingenuous. In fact, a pocket veto was neither necessary nor allowed in this case. In misusing his veto power, Bush was attempting to grab a power for himself and his office that the Constitution’s framers emphatically and repeatedly denied to the president: a nearly unlimited, absolute veto.
Let me explain. The Constitution requires the president to sign or veto any bill sent to his desk by Congress. In most cases, when a bill is vetoed, it is sent back to Congress, which then has the option to override the veto if it can achieve a two-thirds vote in both the House and the Senate. Under certain limited circumstances, however, the president may issue a pocket veto, a form of rejection in which he does not sign the bill or return it to Congress — and the bill dies after 10 days. Congress has no opportunity to override the veto.
Article I, Section 7 of the Constitution stipulates the two conditions necessary for a pocket veto. The first is congressional adjournment. The second condition is that bill return is “prevented.” These two linked conditions acknowledge the existence of adjournments when bill return is possible — and the current situation is just such a case.
Although it’s true that the House has adjourned until Jan. 15, it has designated its clerk to receive communications from the White House, including veto messages, meaning that bill return was possible. This little-known but routine mechanism has been used thousands of times for decades by Congress during long weekends, vacations and breaks (just as the White House’s Office of the Executive Clerk receives bills from Congress on behalf of the president when he is absent or indisposed).
The Senate, for its part, has not adjourned at all, technically; a few of its members have been holding brief sessions every two or three days to forestall Bush from making any recess appointments.
Congressional and presidential use of agents to represent their branches has met constitutional muster. As the Supreme Court said in 1938, “The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.”
The founders inserted the pocket veto in the Constitution to prevent Congress from passing a bill and adjourning to prevent an anticipated veto. But they made it conditional so it would not be abused by the president; they emphatically rejected the idea that the president should have an absolute, monarchical veto that could not be overridden.
In this case, Bush tried to have it both ways. He pocket vetoed the bill as if Congress were entirely out of session — but then he did, in fact, return it to Congress by sending it and an outline of his objections to the House clerk. He did so, according to his veto message, “to leave no doubt that the bill is being vetoed.”
Bush’s dodgy veto gambit mimics similar action by his father, who claimed pocket vetoes of two bills that he also returned to Congress. In both instances, Congress rejected the president’s claims and instead treated the bills as “returned.” Neither was overridden.
In 2000, President Clinton tried the same thing three times, prompting leaders of both parties to object. All three were treated as return vetoes; these weren’t overridden either.
If this all sounds like constitutional arcania, consider the outcome if Bush’s faux pocket veto stands unchallenged: Presidents would have absolute veto power any time Congress is not actually in session, bestowing on the chief executive the very authority the founders sought to deny the office. And why did Bush use this veto gambit now? Maybe because the bill in question passed by veto-proof margins.
Regardless of the motive, the Constitution does not allow presidents to pick the kind of veto they wish to use, and it certainly does not condone a pocket veto just because an override is likely. The existing regular veto is plenty potent, and Congress cannot be denied its constitutional right to review vetoes as long as bill return is possible. Congress should do what it did before: treat Bush’s action as a return veto because the bill was returned. And presidents should curb the impulse to play fast and loose with constitutional powers.
Robert J. Spitzer is a political science professor at SUNY Cortland. His books include “The Presidential Veto.”
