Obama's pocket veto on shaky legal ground, experts say

WASHINGTON — President Obama purported to issue both a pocket veto and a regular veto on the same bill Tuesday, a controversial practice that congressional leaders and some scholars say violates the Constitution.

It's known as the "protective return pocket veto," and there have been just 14 of them issued by Republican and Democratic presidents, all since the Ford administration. Three of Obama's four vetoes have used this hybrid form, but Democrats and Republicans in Congress have objected to the practice and refuse to recognize its validity.

What's the difference? A regular veto can be overridden. A pocket veto cannot. Exercising both vetoes on the same bill could some day lead to a constitutional dispute over whether a bill has become law, experts said.

"The Constitution gives the president two opposing choices. One is the pocket veto, the other is the regular veto. It offers no provision for combining the two somehow. It's a perfectly ludicrous proposition," said Robert Spitzer, an expert on the veto and a political scientist at the State University of New York, College at Cortland. "It's a back-door way to expand the veto power contrary to the terms of the constitution."

The White House would not discuss its legal justification for the form of the veto on the record. But previous presidents have used the hybrid veto "to avoid unnecessary litigation" about the fate of a bill. A spokesman for President George W. Bush once explained that the pocket-and-return veto meant they were "covered either way."

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Under the Constitution, there are two ways for the president to veto a bill. First, he can "return it with his objections to that house in which it shall have originated." That's a regular veto, and Congress can override it with a two-thirds vote of each chamber.

If the president doesn't sign a bill, it usually becomes law without his signature. But there's an exception: If the adjournment of Congress prevents the president from returning a bill, it doesn't become law. That's a pocket veto, and it cannot be overridden.

With Congress away on a two-week Easter break, Obama said he was exercising a pocket veto on a labor relations bill, but then also followed the procedure for a regular veto. "To leave no doubt that the resolution is being vetoed, in addition to withholding my signature, I am returning S.J. Res. 8 to the Secretary of the Senate," he said in his veto message.

"It's pure doubletalk, right?" said Louis Fisher, a constitutional scholar and who wrote about the history of the pocket veto during a 37-year career at the Congressional Research Service. "It's gobbledygook."

The double-veto allows Obama to claim to take no action — and so therefore the veto can't be overridden — while still making a political statement that comes from sending a regular veto message to Congress.

"It gives you a chance to make some rhetorical points," Fisher said. "But legally and constitutionally, it looks stupid, and he doesn't care."

The history of the regular-and-pocket veto gambit goes back 45 years, when President Nixon used a pocket veto to scuttle a health care bill that had the votes to be overridden. Sen. Edward Kennedy, D-Mass., successfully sued the Nixon administration, and an appeals court ruled that the president couldn't issue a pocket veto as long as Congress designated officials to receive veto messages while it was away for a short recess.

So Robert Bork, the solicitor general in the Nixon and Ford administrations, invented the protective return pocket veto. In 1974, President Ford pocketed — and returned — five vetoed bills while Congress was on a month-long election break.

After Congress overrode one of his "pocket" vetoes anyway, Ford decided not to challenge the override and allowed it to become law. But since the issue has never been resolved by the Supreme Court, President George H.W. Bush renewed the practice in 1989. He used it twice, President Clinton used it three times, and President George W. Bush once.

But all of those previous uses of the "protective return" veto came during longer recesses — for summer, for elections or at the end of a year.

The Senate sent the bill to Obama's desk last Friday but designated the Secretary of the Senate to receive veto messages — which it received Tuesday.

Obama's veto of the labor relations bill was the first such veto to be exercised over an Easter recess — a 16-day adjournment. And it's the first such Senate bill vetoed that way — an issue that could create a new precedent in the tradition-bound chamber.

The bill Obama vetoed doesn't have the votes for an override. It passed the Senate 53 to 46 and the House 232 to 186, with all Democrats and three Republicans voting no.

But with more veto fights on the horizon, the Senate may go through the motions of trying to override the veto anyway, just to assert that the pocket veto wasn't proper. That's what the Democratic House did in 2010, after Obama pocket-and-return vetoed a bill that he said was largely redundant to one he already signed.

Then-Speaker Nancy Pelosi, D-Calif, wrote to Obama expressing "profound concern" bipartisan leadership over his use of the pocket veto. "By returning the parchment a president is admitting that he is not prevented from returning it," she argued.

Senate Majority Leader Mitch McConnell, R-Ky., has not yet scheduled an override vote, and his office said parliamentary experts were studying the situation.

"It's a really goofy way of handling the veto," said McConnell communications director Don Stewart in an email. "He calls it a veto, but..."

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