President’s Disputed Pocket Veto Yields Quick Compromise

Posted February 8, 2008 at 12:47pm

President Bush delivered a double shock to Congress on Dec. 28 by vetoing the popular Defense authorization bill without prior warning and by claiming his action represented a “pocket veto” that Congress could not override.

[IMGCAP(1)]The final version of the bill had passed both chambers by overwhelming veto-proof margins and was presented to the president on Dec. 19. However, instead of sending a “veto message” to Congress under official seal, the president returned the official bill (on parchment) with a nine-paragraph “Memorandum of Disapproval.” In it he explained that the veto was prompted by a provision that “would risk the freezing of substantial Iraqi assets in the United States” and thereby “expose Iraq to new liability of at least several billon dollars by undoing judgments favorable to Iraq.”

The president said he had not notified Congress earlier of his objection to the provision because “its full impact on Iraq and our relationship with Iraq has become apparent only in recent days.” He added that the administration was already working with Congress “to fix this flawed provision.”

In the penultimate paragraph of the memorandum, the president said he was “invoking my constitutional power to pocket veto bills” since “the adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution.” That clause states that if the president does not sign a bill into law within 10 days after it is presented to him, it will become law without his signature or “he shall return it with his objections to that House in which it shall have originated … unless the Congress by their adjournment prevent its return, in which case it shall not be a law.”

The president cited the Supreme Court decision in “The Pocket Veto Case” (1929) as authority for his action. In that decision, the court held that a bill presented to the president less than 10 days before the final adjournment of the first session does not become law if it is not signed by the president. However, since that decision, a U.S. Court of Appeals, in Kennedy v. Sampson (1974), upheld a district court decision that a bill not signed by the president during an intrasession adjournment of more than three days was not pocket-vetoed because the Secretary of the Senate had been authorized to receive presidential messages during such adjournment.

Both the House and Senate have adopted rules in each Congress authorizing the House Clerk and Secretary of the Senate to receive messages from the president when their chambers are in recess or adjournment. Consequently, neither house recognizes the right of the president to pocket-veto legislation except at the end of a Congress.

In 1976, President Gerald Ford, on the advice of both Solicitor General Robert Bork and Attorney General Edward Levi (who feared losing pending court cases involving five 1974 pocket vetoes), agreed to use only return vetoes, subject to override, during both intrasession and intersession adjournments. While Ford’s successor, Jimmy Carter, honored that agreement, subsequent presidents have not, arguing that Kennedy v. Sampson was “incorrectly decided.” Ronald Reagan exercised two such pocket vetoes; George H.W. Bush, three; and Bill Clinton, three.

In the current pocket veto controversy, the House, which originated the Defense bill, adjourned the first session on Dec. 19 — the same day it sent the enrolled copy of the bill to the White House. When the House returned for legislative business on Jan. 15, it was notified of a Dec. 28 letter from House Clerk Lorraine Miller to Speaker Nancy Pelosi (D-Calif.). The Clerk informed the Speaker that, pursuant to her authority under House rules to receive presidential messages during adjournments, she was in receipt of the president’s “Memorandum of Disapproval” and the returned bill.

After the reading of the Clerk’s letter, the Congressional Record indicates: “The Speaker pro tempore laid before the House the following veto message from the President of the United States.” Following its reading, Majority Leader Steny Hoyer (D-Md.) offered a privileged motion to refer the bill and “the veto message of the President” to the Armed Services Committee. Note that the document is referred to in both instances as a “veto message” and not a “Memorandum of Disapproval.” Hoyer’s motion was agreed to by voice vote.

Presumably, the Speaker pro tempore could instead have put the question of consideration: “Will the House, on reconsideration, pass the bill, the objections of the president to the contrary notwithstanding?” triggering a debate and vote on overriding the veto. However, the leadership chose the alternative course of referring the vetoed bill to committee and fixing the “flawed provision” in a new bill (which both houses quickly passed and the president signed Jan. 28).

Had the House and Senate voted instead to override the veto, the matter would likely have become entangled in a legal briar patch. That’s what happened in 1974 when the Justice Department instructed the Archivist not to publish as law a vocational rehabilitation bill Ford claimed to have pocket-vetoed. Both houses had overridden the veto after the president returned the bill to the House Clerk (instead of actually pocketing it). It, along with Ford’s four other pocket vetoes from 1974, were the subject of prolonged litigation without definitive judicial resolution.

There may be an appropriate time and case in the future to litigate this controversy. But with military pay raises (and U.S.-Iraqi relations) hanging in the balance, the president’s purported pocket veto allowed both sides to maintain their positions on the constitutional issues and still settle their legislative differences amicably and expeditiously.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.