Is Bush Inventing Another Constitutional Power?

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Mr. Spitzer is Distinguished Service Professor of Political Science at SUNY Cortland. His books include "The Presidential Veto," "The Presidency and the Constitution," and most recently "Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning."

Mostly lost in the wrangling between President Bush and Congress over his recent veto of a massive defense spending bill is the way Bush claimed to use the veto. Instead of issuing a regular or return veto, which returns the bill to the house of origin, and therefore provides for the opportunity of congressional override, Bush stated that he needed to pocket veto the bill, arguing that "the adjournment of the Congress has prevented my return" of the bill to it. Unlike a regular veto, pocket-vetoed bills die; no congressional override is possible.

But here's the anomaly: in this case, Bush did, in fact, return the bill to Congress, doing so, according to his veto message, "to leave no doubt that the bill is being vetoed." Bush's actions - a pocket veto claim combined with the act of return - not only create doubt, but grab a power for the president that the Constitution's framers emphatically and repeatedly denied the office: a nearly unlimited absolute veto.

The pocket veto power is shaped by two factors: the Constitution, and evolving practice. According to Article I, sec. 7, the regular or return veto may be used by the president unconditionally; the pocket veto, on the other hand, is only to be used when "Congress by their Adjournment prevent its Return." This phrase therefore stipulates two conditions for a pocket veto: the first is congressional adjournment. In the case of Bush's December 28 veto, the House did indeed adjourn until January 15, but the Senate has been holding brief sessions to forestall possible recess appointments. The second condition is that bill return is "prevented." These two linked conditions - adjournment plus prevention of bill return - in turn acknowledge the existence of adjournments when bill return is possible; in other words, not all adjournments invite or allow a pocket veto.

In fact, before it adjourned, the House designated its Clerk to receive communications from the White House, including veto messages, meaning that bill return was indeed possible. This little-known but routine mechanism has been used thousands of times by Congress during long weekends, vacations, and breaks, for decades, just as the White House's Office of the Executive Clerk may receive bills from Congress on behalf of the president when he is absent or indisposed. Both procedures have met constitutional muster.

In 1929 the Supreme Court ruled in the Pocket Veto Case that an intersession veto by President Calvin Coolidge was constitutional. It rejected the idea that Congress could designate an agent to receive veto messages, even though Congress had not actually done so, fearing that bills might hang in limbo for months (at the time, Congress only met a few months out of the year). Yet the court also said that the "determinative question . . . is not whether it is a final adjournment of Congress or an interim adjournment . . . but whether it is one that 'prevents' the President from returning the bill." Nine years later, in Wright v. U.S., the high court reversed itself in part, ruling that Congress could indeed designate agents on its behalf, rejecting "artificial formality," and saying that "the Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return." It also dismissed the delay problem mentioned in the Pocket Veto Case as "illusory." Read together, these two cases countenance the use of agents at both ends of Pennsylvania Avenue. (Presidential use of the Executive Clerk to legally receive messages on the president's behalf was upheld in a 1964 Court of Claims case.) Unsurprisingly, Bush's veto message justification mentioned only the Pocket Veto Case.

The other critical fact about the regular and pocket vetoes is that the Constitution and the founders favored the former over the latter. The pocket veto power was made conditional by the founders because they otherwise emphatically rejected the idea of giving the president a monarchical absolute or non-override veto. In two votes at the Constitutional Convention of 1787, the delegates rejected an absolute veto for the president by votes of 0 to 10 and 1 to 9 (votes were cast by state delegations), decrying its use by British monarchs and colonial governors. The pocket veto exception was inserted for a very specific reason: to prevent Congress from ducking a veto by passing a bill and then quickly adjourning to prevent an anticipated veto (without the pocket veto, an objectionable bill could not be returned, and would therefore become law after ten days, with or without the president's signature).

Bush's dodgy veto gambit mimics a similar action by his father, who claimed a pocket veto of two bills which he also simultaneously returned to Congress (as part of a broader effort to expand pocket veto use). In both instances, the bills were treated as return vetoes, since they were, in fact, returned to Congress. Congress failed to override the vetoes. In 2000, President Clinton issued three such "protective return" pocket vetoes (the name given to this procedure during the first Bush presidency). As with the first President Bush, Congress treated the vetoes as return vetoes, as Republican Speaker Dennis Hastert and Democratic Minority Leader Richard Gephardt said in correspondence to the White House. Both objected to the procedure.

So why did Bush use this veto gambit now? Probably three reasons: first, Bush has only vetoed eight bills, the first coming in 2006; second, Bush's objections surfaced only after the bill had cleared Congress by overwhelming margins; and third, the circumstance provides Bush with another opportunity to expand the president's constitutional powers on the cheap. Consider the outcome if Bush's faux pocket veto were to stand without challenge or objection: presidents could use an absolute veto any time Congress is not actually in session, bestowing on the president the very power the founders sought to deny him.

The Constitution does not allow presidents to pick and choose 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. Since Bush returned the bill, that should be the basis of any congressional action. And presidents should abandon this faux double veto.

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