Is That a Veto in Your Pocket?

Yesterday the Bush-Cheney administration produced a mini-constitutional crisis when the White House released a memo stating that the President had rejected a large military spending bill because of one provision, and claiming that he had done so as a “pocket veto.” The obvious question of why the administration had never before objected to that provision, all the while complaining that the bill had to pass quickly, is beyond historical understanding. But the origins and parameters of the pocket veto lie in the eighteenth century.

It was understood that colonial governors, acting as the king’s and Parliament’s representatives, could approve or deny new legislation. Indeed, the first two grievances in the Declaration of Independence refer to what the Continental Congress said was abuse of that executive-branch prerogative:

He [George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

The U.S. Constitution of 1787 created a new national executive, but it also limited that President’s power to negate new laws. Article 1, Section 7 says:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.

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 last sentence has given rise to the so-called pocket veto: a President takes no action on a bill when Congress has adjourned, and it dies. A pocket veto is thought to have two advantages over an ordinary veto:

• The Constitution doesn’t state any way that Congress can override one.
• Taking no action on a bill may seem more mild than using an ordinary veto to, say, block funds for soldiers in a time of war after insisting that Congress pass just such a bill.

The first President to use a pocket veto was James Madison, a principal architect of the Constitution. That seems ironic since the obvious thrust of the final clause above is that Congress’s bills become law even in the absence of a President’s signature. The “pocket veto” was simply a provision for an odd contingency (an “unless” within an “if”), and I doubt anyone at the Constitutional Convention foresaw it as granting the President a stronger form of veto.

Indeed, it’s clear that the Constitution’s framers didn’t want to grant Presidents as much power over legislation as those of the past several decades have exercised. The term “veto” never even appears in the Constitution, nor its eighteenth-century synonym “negative” (as in Boston merchant John Rowe’s diary entry for 1 June 1769: “The Governour Negatived eleven counsellors...”). George Washington, who presided over the Constitutional Convention, wrote that a Presidential veto “can only be Justified upon the clean and obvious ground of propriety,” not simply because he didn’t like the bill.

As for whether Congress can override a pocket veto, the Constitution doesn’t state that it can’t. In fact, I think the Convention probably felt that Congress could approve the same bill again by majority vote as soon as it resumed business. Section 7 requires a two-thirds vote to override a veto only when the President has formally returned the bill to Congress for reconsideration, not when he’s pocketed it.

But the parameters of the pocket veto have never been fully tested before the Supreme Court. Some Presidents have interpreted Section 7’s language to refer only to the adjournment at the end of a full two-year congressional session, not just a holiday break. With the action on such vague constitutional grounds to begin with, Presidents have been reluctant to push on such disputes with Congress.

In this particular disagreement, there are two additional wrinkles. Kagro X notes that the military spending bill went to the White House on 19 December, and the reply memo is dated 28 December—so obviously “ten Days (Sundays excepted)” had not yet passed and the pocket-veto clause did not yet apply. Furthermore, while the House had adjourned temporarily, the Senate has remained in session to ensure that the administration doesn’t make any more harmful “recess appointments” (under Article 2, Section 2: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”). If one house of Congress is in session, how can Congress have adjourned at all?

If the Bush-Cheney administration really cared about clear constitutional actions, it should simply have vetoed this bill and endured the resulting public criticism.