Growing Executive Power: The Strange Case of the “Protective Return” Pocket Veto

Robert J Spitzer. Presidential Studies Quarterly. Volume 42, Issue 3. September 2012.

Recent presidents have carved out a presidential power by asserted constitutional right allegedly adhering to the presidency in the form of the so-called protective return pocket veto, by which presidents claim to pocket veto a bill-a circumstance where, by definition, bill return to Congress is not possible-yet proceed to do the impossible by returning the bill to Congress. This obscure yet portentous power grab (1) arose, ironically, from adverse court rulings and a repudiation of the protective return; (2) illustrates the accretion of presidential power by the daiming of constitutional powers by presidents; and (3) exemplifies the ability of presidents to autonomously define, consolidate, and expand power over time.

In his first three-plus years in office, President Barack Obama exercised the presidential veto power only twice. Both vetoes involved relatively minor legislative matters and received little public attention. That Obama would veto only two bills during this time is hardly unexceptional, as vetoes are uncommon when the president’s political party also controls Congress (Spitzer 1988, 76-78; the Democrats controlled both houses in 2009-11, and the Senate in 2011-13). An observer would scarcely guess that these two otherwise obscure vetoes were but the most recent instances of an ongoing constitutional struggle over what some view as an executive power grab extending back five decades.

Two Vetoes for the Price of One

Obama’s first veto was of a defense appropriations spending bill that duplicated another he had signed into law earlier that month. The vetoed bill was a stop-gap spending bill that became unnecessary when the regular annual Pentagon appropriations bill was passed in time. On December 30, 2009, during Congress’s Christmas recess, the president announced that he was pocket vetoing H.J. Res 64. Yet in pocket vetoing the bill, he also did something that, under the terms of the pocket veto power described in the Constitution, is impossible: he returned the pocket vetoed bill to the clerk of the House of Representatives. Obama (Woolley and Peters n.d.) explained his action in his veto message this way:

To leave no doubt that the bill is being vetoed as unnecessary legislation, in addition to withholding my signature, I am also returning H.J. Res. 64 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval.

Despite the fact that Congress agreed with the substance of Obama’s action—that is, the stop-gap spending bill was indeed unnecessary—the Democratic-controlled House nevertheless held a vote to override the veto, in order to demonstrate that it disagreed with Obama’s veto tactic, dubbed a “protective return” pocket veto. As fellow Democrat and Obama loyalist Rep. David Obey (WI) said, “we do not consider it a pocket veto” because the House had designated the clerk to receive messages (as Obama noted in his veto message). An (unsuccessful) override vote was held, in Obey’s (Grim 2010) words, “to demonstrate that in our judgment a pocket veto is not appropriate, that the president exercised [an] irregular veto and it should be treated as such.” And in a rare moment of bipartisanship, Democratic House Speaker Nancy Pelosi and Republican Minority Leader John Boehner (Pelosi and Boehner 2010) signed a joint letter to Obama objecting to his use of this veto procedure.

Obama’s second veto, on October 8, 2010, was also a protective return pocket veto. This time, the veto garnered more public attention—although news reports were laced with inaccuracies—as H.R. 3808 was a bill that would have allowed mortgage foreclosure documents to be accepted across state lines. Obama opposed the bill on the grounds that the measure would make foreclosures too easy at a time when the home mortgage market and the economy were struggling to revive. The portion of Obama’s veto message explaining his veto method was identical to that of his earlier veto message. Obama press spokesman Dan Pfeiffer (Pfeiffer 2010; see also Calmes 2010) offered this further explanation for Obama’s action:

The longstanding view of the Executive Branch is that a pocket veto is appropriate in circumstances such as these, where the House is in recess … the House’s recess prevents the President from returning it there … To avoid any doubt, however, and in keeping with past practice, the President made a protective return of the bill to the Clerk of the House of Representatives, so even if the House disagrees on the pocket veto issue, the House will treat the return of the bill with a statement of objections as a regular veto.

Again, the House held an override vote (the veto was sustained) to challenge the protective return procedure. Despite some brief controversy (Spitzer 2010a, 2010b), attention rapidly, and understandably, turned to other matters.

Far from a matter of mere constitutional arcania, the dispute over the virtually unknown protective return pocket veto provides a singularly crystalline example of the manner in which executive power has grown. Shorn of the drama and visibility of the disputes over other constitutional powers, such as the war power, this case brings into sharp relief the inexorable and bipartisan nature of executive constitutional power accretion. In this essay, I first examine the veto power to establish the constitutional functioning of both the regular or return veto and the pocket veto. I then unearth and examine the invention and evolution of the so-called protective return pocket veto and its justification, and explain how an action beyond constitutional bounds has become accepted and justified by both Democratic and Republican presidents. Finally, I discuss the consequences of this power grab.

The History of the Veto: Regular versus Pocket

The Constitution provides the president with two kinds of vetoes in article I, section 7. The regular or return (sometimes also called qualified) veto is exercised when the president takes two steps: withholds executive signature and then returns the bill “with his Objections to that House in which it shall have originated.” The bill is then subject to possible override by Congress. The pocket veto, by contrast, not only observes different and more circumscribed procedures, but has a different and more emphatic effect, because it is absolute—that is, the exercise of a pocket veto kills the legislation in question because there is no bill return and therefore no possibility of override. Congress’s only alternatives to dealing with a pocket veto are to either stay in session for at least 10 days after the passage of a bill that may be subject to pocket veto, so that the bill can be returned to Congress, or start from scratch and repass the bill when Congress reconvenes. As the Constitution says, “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 first part of this sentence states that if the president takes no action on bills presented by Congress, they become law automatically after 10 days. The necessity of this provision is evident, as presidents could otherwise halt bills by simply withholding their signature. This circumstance is then modified by the phrase, “unless the Congress by their Adjournment prevent its Return,” in which case any bill not signed by the president is vetoed by pocket veto, even though it is not returned to Congress.

The very existence of the pocket veto would seem to contradict the sentiments of most of the Constitution’s framers concerning the executive veto, because the pocket veto is, in its effect, an absolute veto, a power squarely opposed by most at the Constitutional Convention of 1787. Among others, James Madison, Roger Sherman, Pierce Butler, and Benjamin Franklin all spoke against an absolute veto for the president, fearing that it would gather too much power into the hands of the executive. The country’s experience with the absolute veto was immediate and painful, as it had been used for decades by British monarchs and colonial governors to thwart colonial legislation and to leverage political concessions as a condition for approval of colonial legislation (Spitzer 1988, 8-10). To be sure, the absolute veto had several articulate champions, including Alexander Hamilton, James Wilson, George Read, and Gouverneur Morris. Yet in votes at the Constitutional Convention on June 4 and August 7, the proposal was emphatically rejected: 0-10, and 1-9 (votes were cast by state delegations; Farrand 1966, 1:95; 2:200). Thus, the verdict of the convention was decisively against an absolute veto. How, then, is its presence in the Constitution in the form of the pocket veto explained?

There was no debate during the convention on what later came to be called the pocket veto, yet the motive for its inclusion is clear. Quite simply, the pocket veto power was inserted to guard against the possibility that Congress could pass a bill but then quickly adjourn as a way of avoiding a veto before the president had a chance to return the bill, as the regular veto can only be executed if Congress receives the returned bill along with the president’s objections to it. Joseph Story noted in 1833 that the pocket veto was necessary precisely because it prevented Congress from circumventing a regular veto. After quoting from the constitutional provision describing the regular veto process, Story (1987, 324) observed that “if this clause stood alone, congress might, in like manner, defeat the due exercise of his qualified negative by a termination of the session, which would render it impossible for the president to return the bill. It is therefore added, ‘unless the congress, by their adjournment, prevent its return, in which case it shall not be a law.'” Thus, the pocket veto was inserted to prevent the prospect of a bill automatically becoming law despite the president’s objections but without the president’s signature after 10 days (remembering that signature-less bills automatically become law after 10 days when Congress is in session).

One additional insight concerning the pocket veto case can be culled from the constitutional debates. In Document VIII of the Committee of Detail (a committee of five convened to hammer out constitutional language at the Constitutional Convention), the first language of what became the pocket veto clause called for no pocket veto at all. Instead, it called for legislation that could not be return-vetoed to the house of origin because “their adjournment, prevent its Return” to instead “be returned on the first Day of the next Meeting of the Legislature.” (Farrand 1966, 2:162) This procedure was the one provided for in the New York Constitution of 1777, from which this and other elements of the federal Constitution were likely borrowed (Farrand 1966, 2: 161-62; Kennedy 1977, 360). In the committee’s subsequent Document IX, and in the version presented to the convention on August 6, the post-adjournment return language was dropped, giving the president the pocket veto (Farrand 1966, 2:167, 181). The initial wording underscores the founders’ devotion to the principle of bill return. Kennedy (1977, 359-62) argues that the earlier language was dropped to avoid long delay and uncertainty over the fate of vetoed bills and further suggests that the wording in Document IX was designed “to authorize the intersession pocket veto, but to exclude the intrasession pocket veto.” Illumination of this issue can be gleaned from debate at the convention over language requiring Congress to meet at least once a year (article I, section 4). It detailed the expectation that Congress would meet for sessions lasting only a few months out of the year, owing to such factors as travel problems related to weather, the need for members to conduct “private business” during the summer, and the desirability of holding congressional elections at the same time as elections for state offices (Farrand 1966, 2:199-200). Because the founders knew that many months would elapse between sessions, and were keenly aware of obvious travel and communication problems, they would know also that bills not signed by the president at the end of a session would be in a kind of bill limbo absent a pocket veto.

Four critically important conclusions about the relationship between the regular veto and the pocket flow from this analysis. First, the president was given the pocket veto to defend against any congressional effort to duck, and therefore thwart, the regular veto. Unlike the regular veto, the use of which is not circumscribed by the Constitution, pocket veto use is carefully circumscribed by the fact that it may only be used when congressional adjournment prevents a bill’s return. That is, the pocket veto is triggered by two conditions stipulated in the Constitution: congressional adjournment and the impossibility of normal bill return. (Note here that an adjournment of Congress is defined as the ending of a session or meeting, whereas a recess is merely a temporary pause in a legislative day; in fact, a legislative day may extend over many calendar days.) Second, the Constitution establishes a clear preference for regular veto over pocket veto use. That is, given any choice, ambiguity, or overlap between possible regular and pocket veto exercise, the Constitution is biased in favor of the exercise of the former rather than the latter. For not only did the clear majority of founders disdain an absolute veto, they also placed great emphasis on the value to be derived from granting Congress an additional opportunity once more to consider legislation before it is either enacted into law or killed. Contrary to contemporary impression, the veto was viewed in the eighteenth century as more than a simple negative or block. In referring to the veto as the “revisionary” power, the founders referenced the veto’s more positive and constructive quality, especially as a way to provide a final check against legislation that might be hastily or incompletely conceived, or that would benefit from a final round of reconsideration (Spitzer 1988, 19-20). Third, the founders were concerned about the uncertainty that might arise from legislation passed by both houses at the end of a session that was followed by a lengthy break and about which presidents had reservations. This concern about uncertainty was sufficiently great to overcome the founders’ objections to an absolute veto power for the president. It is also reflected in a little-known fact about the early operation of Congress. Owing to the lapse of many months between sessions of early congresses, the institution ended all business at the end of each session as if each were an entirely new Congress. In other words, unfinished legislative matters were considered dead at the end of each session within a two-year Congress. The House ended this practice in 1818, and the Senate ended it in 1848 (Hinds 1907, vol. 5, chap. 140, 87; Kennedy 1977, 362, 379). Fourth, the pocket veto wording that defines the power as available when adjournment prevents bill return also means that there are adjournments when bill return is possible; that is, not all adjournments invite or allow a pocket veto.

Evolving Historical Interpretation and Use

Pocket vetoes have been exercised by presidents in three circumstances: during intrasession adjournments, between sessions of Congress (that is, intersession adjournments), and at the end of a two-year Congress. The mere fact of this precedent would seem to buttress the idea that modern presidents are free to use the pocket veto during any adjournment lasting more than 10 days or even during briefer adjournments when the tenth day fell during the break. Yet the first intrasession pocket veto did not occur until 1867. And pocket vetoes between sessions made sense in the country’s early years because, as just mentioned, Congress operated as though the end of a session were the practical equivalent of the end of a Congress.

The first intrasession pocket veto was the product of historical accident. It occurred in 1867, during the first session of the fortieth Congress, when Congress completed work on a joint resolution, H.J. Res. 6, pertaining to Civil War troop benefits, just before a spring recess. Senator Edmund G. Ross, who chaired the committee on enrolled bills placed the bill on his desk but then absent-mindedly left it there for eight days. When the bill was found, it was hurriedly presented to President Andrew Johnson, who refused to sign it—not because he wanted to veto the bill, but because of the belief that he could only sign it when Congress was in session (Kennedy 1977, 357; “Report on Pocket Veto” 1928, 14). Thus was the first intrasession pocket veto exercised. (All previous 26 pocket vetoes used by eight different presidents were exercised after sine die adjournments at the conclusion of the first, second, or third sessions of congresses. A sine die adjournment is one that means, literally, “without a day,” meaning a final adjournment. Contemporary congresses adjourn sine die at the end of a two-year Congress. A non- sine die adjournment is to a fixed date, which cannot be used to end a concluding Congress.) Johnson pocket vetoed four more bills during an intrasession break in the second session of the fortieth Congress.

No president exercised an intrasession pocket veto again until Benjamin Harrison, who pocket -vetoed S. 2275, a bill to provide relief for purchasers of timber and stone lands, during a 13-day break in the second session of the fifty-second Congress in 1892. Before acting on the bill, Harrison solicited the views of his attorney general, William H. H. Miller (1892, 503), who searched prior Justice Department opinions on the subject. In his written opinion to the president, dated December 28, 1892, Miller made no mention of Johnson’s intrasession veto. He did say that his research had uncovered “No formal opinion by any of my predecessors” on the propriety of a pocket veto under these circumstances. After weighing relevant evidence, Miller concluded that the president could use a pocket veto during a recess but recommended that “bills coming to you during the recess of Congress, or within ten days prior thereto be signed or vetoed as they meet your approval or disapproval, the bill, in case of veto, being returned when Congress reconvenes, and allow any questions as to their validity be settled in court” (Miller 1892, 508). In this instance, Harrison did not follow Miller’s advice to veto the bill by return veto.

From Presidents Andrew Johnson through Richard Nixon, presidents pocket vetoed 84 bills during intrasession adjournments (Pope 1986, 172-73). As has so often occurred with the presidency, a precedent-setting action—even one founded in sheer accident—eventually became the starting point for an action that was ultimately repeated and routinized (in this case, the intrasession pocket veto). Even setting aside these historical circumstances, practice alone does not define constitutional right or power, a fact that the Supreme Court has noted on many occasions (e.g. INS v. Chadha (1983, 957-59); Whitney 1986, 1167).

Court rulings have helped resolve ambiguities concerning when, and under what circumstances, the pocket veto could be used. In the Pocket Veto Case (1929), the Supreme Court ruled on a challenge to a pocket veto by President Calvin Coolidge that occurred between sessions at the start of a six-month congressional break in 1926. In its ruling, the Court upheld the intersession veto. The Court first noted that the specific matter before it was whether the congressional adjournment in question had prevented the president from returning the bill. In addressing the pertinence of adjournment, the Court noted 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 to the House in which it originated within the time allowed” Pocket Veto Case, 279 U.S. 655, 680 (1929). The Court rejected the argument of those challenging the veto that a bill could be returned to a duly designated agent when Congress was not in session, since Congress had never actually done this, and because the Court feared that bills might hang in limbo for many months.

In Wright v. United States (1938, 589-90, 595), the Court considered a challenge to a regular veto of a bill returned to the Secretary of the Senate during a three-day Senate recess. In upholding the veto, the Court said that it did not consider the three-day period an adjournment, but it also contradicted its previous conclusion in the Pocket Veto Case by saying that Congress could indeed designate agents on its behalf, rejecting what it now considered “artificial formality” by 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.” The Court also dismissed the potential delay problem mentioned in the Pocket Veto Case as “illusory.” Even though the Wright case pertained to a three-day recess of one house, and did not actually overturn the Pocket Veto Case, it rejected the impediments to bill return when Congress was not in session cited in the earlier case. When the Pocket Veto Case and Wright are read together, they remove the obstacles to regular vetoes during both intra- and intersession adjournments, paving the way for a growing consensus that pocket vetoes should only be used after sine die adjournments at the end of a two-year Congress (Zinn 1951, 19). Presidents continued to issue pocket vetoes, but none of them sparked controversy or procedural complaints until the Nixon administration, when an activist president and his zealous solicitor general pushed the pocket veto anew.

Nixon, Ford, the Pocket Veto, and the Rise of “Protective Return”

The protective return pocket veto gambit traces its origins to the Nixon administration and specifically to its solicitor general, Robert Bork. On December 24, 1970, President Nixon vetoed the Family Practice of Medicine bill, a measure that passed by wide margins in both houses. The veto fell during Congress’s intrasession Christmas recess, which ran from December 22-28 in the House and December 22-29 in the Senate (that is, the tenth day of the 10-day sign-or-veto period fell during this break period). Nixon used this opportunity to issue a pocket veto, based on the argument that Congress’s absence prevented the president from returning the bill to Congress under the veto provisions described in article I, section 7 of the Constitution. The pocket veto may have been motivated by the veto-proof majorities by which the bill had passed (346-2 in the House and 64-1 in the Senate), strongly suggesting that a return veto would have resulted in an override (Dumbrell and Lees 1980, 165). Senator Edward Kennedy (D-??) said Nixon’s “promiscuous use of the pocket veto in this situation was obviously designed to avoid an embarrassing vote in Congress on a veto that would surely have been overridden” (Fisher 2001, 4).

Senator Kennedy challenged the veto in federal court, arguing that Nixon could not employ a pocket veto under these circumstances (Kass 1971, 1033). In Kennedy Y.Sampson (1973) a federal district court agreed that Nixon had not been prevented from returning the bill to Congress through its legally designated agents and especially since the veto occurred in the middle of a congressional session. The Nixon administration appealed the ruling, but the District of Columbia Circuit affirmed the district court ruling Kennedy v. Sampson 191 A). It even expanded on the lower-court ruling, casting doubt on the legality of pocket vetoes during any intrasession adjournments, as long as Congress designated agents to receive veto messages, and congressional leaders were in communication with those agents, should any rapid action on the part of Congress be warranted. Both courts concluded that the Family Practice of Medicine Act had become law without the president’s signature, and it was eventually printed as such (PL. 91-696).

In an about-face, the Nixon administration decided against an appeal to the Supreme Court. In a letter written by Nixon Solicitor General Robert Bork (by this time he was serving in the same capacity for President Gerald Ford) to Kennedy on January 10, 1975, he expressed a changed sentiment, saying now that the administration “had no objection to the judgment” of the court and that it “probably reached the correct result on the veto question.” Bork’s only concern about the federal court ruling, according to his letter, was “the breadth of a few remarks in the opinion” (quoted in Keeffe 1975, 755). Apparently unhappy that the matter would not go to the high court, Kennedy’s office issued a press release on January 10 charging that Bork and the administration “wants to ignore the court decision, and it also wants to continue the use of the pocket veto” (quoted in Keeffe 1975, 755). Kennedy’s attack apparently was a response not only Bork’s refusal to appeal Kennedy, but President Ford’s new pocket veto stratagem, applied in five instances three months earlier.

During an intrasession adjournment of Congress from October 17 to November 18, 1974 (a 31 -day break), President Ford issued what he said were five pocket vetoes: one on October 22 (H.R. 1 1541, a bill to amend the National Wildlife Refuge System Administration Act of 1966), and four on October 29 (H.R. 6624 and H.R. 7768, two private bills; H.R. 13342, a bill to amend the Farm Labor Contract Registration Act of 1963; and H.R. 14225, a bill to amend the Rehabilitation Act of 1973). In each instance, Ford’s veto message Public Papers 1975, 447-506) included this identical language:

I am advised by the Attorney General and I have determined that the absence of my signature from this bill prevents it from becoming law. Without in any way qualifying this determination, I am also returning it without my approval to those designated by Congress to receive messages at this time.

Ford then proceeded to return the five bills, along with his veto messages, to the clerk of the House, who had been designated to receive veto and other messages while the House was in adjournment. In response, Congress treated these actions as return vetoes, not pocket vetoes. In substance, the House offered no challenge to three of the bills. It did vote to override H.R. 6624 but sustained Ford’s veto (236-163; the Senate took no action). A vote was also held on H.R. 14225, but in this instance both houses successfully overrode the veto.

The combination of the Kennedy ruling, the Ford administration’s unwillingness to appeal Kennedy, and these five allegedly “return” pocket vetoes sparked some public attention. Citing Bork’s January 10, 1975, letter to Senator Kennedy, the New York Times editorialized on January 1 5 that Solicitor General Bork and the Justice Department had “still not learned the basic lesson of Watergate” (“The Rule of Law” 1975) in its backing of Ford’s five pocket/return vetoes from the previous October that, in the view of the Times, reflected an effort to sidestep the Kennedy ruling. On January 24, the Times published a testy response letter from Bork, in which he argued that Ford’s five October vetoes were different from the veto that gave rise to Kennedy. Specifically, Bork noted that Ford “stated he thought the pocket veto appropriate, but, if not, he was exercising a return veto. The latter, of course, may be overridden by Congress.” (Bork 1975) To Bork’s way of thinking, Ford’s new pocket veto variation was more limited and reasonable than Nixon’s, saying that Ford’s actions were a “limited power” claimed by the president, compared with the “much broader claim” of Nixon in his 1970 veto. The Ford vetoes also allowed Bork to perpetuate the argument that the president had a right to pocket veto during an intrasession recess but did not give Congress any basis for litigation since the bill was, in fact, returned to Congress. Bork’s Times letter buttresses the assumption that he was the inventor of the protective return gambit.

In a final twist, Bork authored a memo to Ford Attorney General Edward Levi on January 26, 1976, in which he now argued that they should abandon their effort to resist the Kennedy rule as well as attempts to exercise intrasession and intersession pocket vetoes. On January 29, 1976, Levi authored a memo to Ford making the same recommendation, which ended the pocket veto dispute. Both memos said that Ford “has determined that he [Ford] will use the return veto rather than the pocket veto during intrasession and intersession recesses and adjournments of the Congress” as long as the houses have designated agents to receive such messages. Both memos (“H.R. 849” 1989, 125-42) also emphasized the likelihood that any further litigation by the administration would probably result in defeat in the courts. That arrangement was sustained during Jimmy Carter’s presidency. Yet even though the architect of this pocket veto gambit not only abandoned and renounced the effort, but embraced the argument he had formerly opposed, that did not prevent the resurrection of this veto Dracula (see Appendix to this article for full list of protective return vetoes).

Reagan Revives Pocket Veto Games

During his presidency, Ronald Reagan did not attempt any intrasession pocket vetoes or protective returns but did pocket veto two bills during intersession breaks. In December 1981, Reagan pocket vetoed between sessions of Congress an obscure relief bill enacted to help a bankrupt Florida company. Congress took no action, and the bill died. His second such pocket veto, of a bill pertaining to human rights abuses in El Salvador, occurred in November 1983, and prompted a court challenge by 33 members of Congress, raising the same issues as those from the Kennedy case. A U.S. district court judge upheld the veto Barnes v. Carmen 1984). That ruling was appealed to the District of Columbia Circuit Barnes v. Kline 1985), where the court overturned the lower-court ruling. It concluded that a pocket veto could now only be used at the end of a two-year Congress because Congress’s constitutional right to override a veto, if it chose to do so, trumped the executive’s desire to use a pocket veto during intra- or intersession adjournmerits. Ironically, the one dissenting judge in the case was Robert Bork, now a federal judge, who argued in a lengthy dissent that members of Congress did not have standing to sue and that the courts should stay out of such matters in any case. The decision was appealed to the Supreme Court Burke v. Barnes 1987), but a majority ruled the matter moot, vacating the lower-court rulings and leaving unresolved the questions the case raised. Still, even though Reagan never attempted a protective return pocket veto, there is reason to believe the administration wanted to pursue aggressive pocket veto use, including perhaps this option.

Bush I and the Protective Return Gambit

The first Bush administration significantly escalated the pocket veto debate by arguing for intrasession, as well as intersession, pocket vetoes (Spitzer 2001, 726-27). George H. W. Bush also issued two protective return pocket vetoes. In November 1989 Bush vetoed a Chinese immigration bill, H.R. 2712, at the end of the first session of the 101st Congress, which he treated as a pocket veto. This was signaled by his issuance of a Memorandum of Disapproval (the title of the written message accompanying pocket vetoes; the heading for return veto messages is “Veto Message”), saying that a congressional adjournment prevented the bill’s return. Yet in this instance, Bush in fact returned the bill to Congress on November 30, which in turn treated the veto as a regular veto. Override votes were held in both houses; the veto was overridden in the House on January 24, 1990 but sustained in the Senate the next day. Bush made the same claim for an appropriations bill for the District of Columbia, H.R. 2699, vetoed in August 1991 (Congress took no override votes). Even though Bush called these two actions pocket vetoes by saying that bill return was impossible based on his reading of the meaning of article I, section 7, he nevertheless contradicted himself and returned the two bills to Congress in “protective return” fashion. In both instances, this identical wording was included in the Memorandum of Disapproval (Woolley and Peters n.d.) messages:

The adjournment of the Congress has prevented my return of H.R. 2712 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). Because of the questions raised in opinions issued by the United States Court of Appeals for the District of Columbia Circuit, I am sending H.R. 2712 with my objections to the Clerk of the House of Representatives.

Of course this statement makes no sense. Bush claimed that congressional adjournment prevented return of the bills, and therefore they did not become law. Yet his return of the bills made it possible for them to become law through congressional override. In short, he exercised a regular veto, not a pocket veto.

The explanation for Bush’s actions was revealed in part in testimony given by his assistant attorney general, William P. Barr, during hearings held by a subcommittee of the House Rules Committee in July 1989. Barr testified to speak against H.R. 849 (“H.R. 849” 1989, 61), a bill to define the president’s pocket veto powers. If enacted, the bill would have limited pocket vetoes to final, sine die adjournments at the end of a Congress. Speaking for the administration, Barr asserted that “the Constitution implies that any adjournment by the Congress—that is, any adjournment of either house for longer than three days—gives occasion for a pocket veto.” So, for example, a congressional weekend or holiday of four days would open the door to a pocket veto if a bill were presented to the president 10 days before the break. Barr also challenged Congress’s right to define the term “adjournment” by legislative means. The rationale for the three-day rule arises from article I, section 5, which says that neither house of Congress shall adjourn for more than three days without the consent of the other house. Since Congress consists of two houses, it may be considered as adjourned if one house is not in session. To the Bush White House, the fact that Congress delegates agents to receive veto messages was an irrelevancy (McGinnis 1990). Barr’s logic seems strained, since he rejects the right of Congress to define its own adjournment yet asserts a presidential right to do so.

Clinton Continues

There the matter remained until 2000, when President Bill Clinton resurrected the same dual veto procedure. In three instances, Clinton claimed to simultaneously exercise both a regular veto and a return veto against H.R. 4810, the Marriage Tax Relief Reconciliation Act of 2000 on August 5; H.R. 8, the Death Tax Elimination Act of 2000 on August 31; and H.R. 4392, the Intelligence Authorization Act for fiscal year (FY) 2001 on November 4. In all three instances, his veto message concluded with the same wording:

Since the adjournment of the Congress has prevented my return of within the meaning of Article I, section 7, clause 2 of the Constitution, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to “pocket veto” bills during an adjournment of the Congress, to avoid litigation, I am also sending _____ to the House of Representatives with my objections, to leave no possible doubt that I have vetoed the measure

Note that, when compared with the Bush veto message wording, the only notable change is the omission of reference to the court of appeals decision Kennedy v. Sampson 1974) and the addition of the justification “to avoid litigation.” In response to Clinton’s actions, Speaker of the House Dennis Hastert (R-IL) and Minority Leader Richard Gephardt (D-MO) sent correspondence to the White House Congressional Record 2000) objecting to the protective return procedure, noting prior congressional objections to Bush’s comparable actions, and making clear that they would treat these dual vetoes as return vetoes. No legal challenges ensued.

Bush II

In his two terms as president, George W Bush vetoed only 12 bills, giving him the lowest per year veto average of any president since James K. Polk (not including those presidents who never used the veto). One of Bush’s 12 was a protective return pocket veto: his December 28, 2007, veto action against H.R. 1585, the National Defense Authorization Act for FY 2008. In this instance, the House had adjourned for Christmas recess until January 1 5 but had designated the clerk of the House to receive messages (as the House had done in previous circumstances), and the Senate remained in nominal session in order to forestall any recess appointments to fill executive branch positions by Bush (Spitzer 2008a). In his veto message (Woolley and Peters n.d.), titled “Memorandum of Disapproval,” Bush said this:

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. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to “pocket veto” bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

In explaining this move, Bush Deputy Press Secretary Scott Stanzel (“Press Gaggle” 2007) told a reporter that they took the action, “what they call a protective return,” “to make sure that Congress, when it returns in January, can move forward quickly with a fix to that legislation.” When asked further, “So you think you’re covered either way, right?” Stanzel replied in the affirmative and added that this “process and procedure … has been used a number of times over the past couple decades.”

Congress did not challenge Bush’s veto, but in January 2008 it again enacted the measure but with one change from the earlier bill: it now included a provision, absent in the earlier bill, that allowed the president to waive certain rights of American citizens to sue the nation of Iraq for recovery of damages related, in this instance, to torture at the hands of the Iraqi army. Several Americans, including CBS News correspondent Bob Simon, who had been captured by the Iraqi army and tortured during the 1991 Persian Gulf War, were seeking damages from the Iraq government in American courts. In several cases that reached the Supreme Court in 2009, the plaintiffs argued, in part, that Bush’s December 2007 veto was unconstitutional and that H.R. 1585 in fact became law without the president’s signature because the protective return mechanism “was ineffective and unconstitutional” (“Brief 2009). Here, at last, was an opportunity for the Supreme Court to consider the merits of the protective return pocket veto.

In April 2009, a unanimous Court ruled in favor of the government and against those seeking to sue Iraq in Iraq v. Beaty (848, n.2). To the surprise of few, the Court sidestepped the merits of whether Bush’s protective return pocket veto was “defective,” saying only that “We need not inquire into that point, since Congress (evidently thinking the veto effective) enacted a new bill that was identical in all material respects but for the addition of presidential waiver authority.”

Conclusion: Growing Executive Power

Two sets of conclusions pertaining to historical change arise from this analysis: one about the protective return pocket veto and the other about how presidents have employed and justified this device throughout history.

The Protective Return Gambit

The protective return pocket veto is literal constitutional nonsense. To wit,

1. The protective return is unconstitutional on its face. The constitutional return veto and pocket veto, carefully described in the Constitution, are mutually exclusive acts—”either/or” options. There is no reason, or justification, for attempting to somehow combine them. Moreover, they are hierarchical: the Constitution (and the founders) prefer the regular or return veto precisely because of the value attached to final legislative review for Congress. The pocket veto only exists to cover the circumstance when a veto-eligible bill cannot be returned to Congress.

2. The protective return is utterly incompatible with the founders’ intent, including their emphatic repudiation of an absolute veto. Further, the first Bush administration’s argument that the Constitution’s article I, section 5 reference to adjournments of longer than three days requiring the consent of both houses as a justification for a pocket veto is simply unrelated to the article I, section 7 veto power.

3. The protective return is unnecessary. Indeed, the only reason for its existence is to try and retrieve a more expansive pocket veto from the dustbin of the 1970s. If bill return is possible (and each protective return includes bill return to Congress), then the remedy is the regular or return veto. The protective return creates doubt (Spitzer 2001, 729-30); it does not resolve it.

4. The protective return process contradicts the existing case law. Even though the Pocket Veto Case (1929) upheld an intersession pocket veto, it also made clear that the pocket veto was predicated on two conditions: adjournment of Congress and prevention of bill return. It was also concerned about delay at a time when Congress was out of session for six months at a time and had not designated agents to receive messages. But such lengthy adjournments disappeared thereafter. And the Wright (1938) case sanctioned the right of Congress to use appointed agents to receive veto messages when Congress was not in session. The Kennedy (197 ‘4) case suggested that pocket vetoes no longer made sense during intrasession and intersession adjournments.

Presidential Justifications

The protective return arose, at least in part from Bork’s brain, as a way to keep alive the possibility of a pocket veto during an intra- or intersession adjournment in the face of adverse court rulings (the Kennedy ruling from the District of Columbia Circuit came in August 1974; Ford’s five protective return vetoes came two months later). Even though Bork repudiated his position in 1976, an activist conservative legal movement that now included enthusiasm for vigorous executive power, and that was thriving in the Reagan Justice Department (Spitzer 2008b, 2012; Teles 2008), resumed the cause in the 1980s. At least in part because of the shadow cast by litigation over Reagan’s pocket veto of the El Salvador bill (litigation over it spanned the period of 1983-1986), no protective returns ensued until the first Bush administration.

Most revealing in terms of the unilateral presidential legitimation of the protective return are the veto message justifications for the protective returns. The two from George H. W. Bush make the same arguments. The 1929 Pocket Veto Case was cited for justification, presumably because it upheld an intersession pocket veto (ignoring everything else about the Court’s decision), but the explanation ignores other relevant cases and precedent, including Wright (1938) and the Ford administration’s repudiation of the expansive pocket veto arguments. The Kennedy (1974) case was mentioned, but was now used, perversely, as a justification for the protective return, and citing only “questions raised” by the ruling, without specifying what those questions were, or noting that Kennedy on its merits offered no support or cover for the protective return gambit.

The Clinton protective return veto messages also cite the Pocket Veto Case alone, but now eliminate any reference to Kennedy, and instead simply assert that the president is “invoking my constitutional power to ‘pocket veto’ bills during an adjournment of Congress.” Yet, to “avoid litigation” (i.e. to forestall a Kennedy-like challenge, one assumes), the bill is sent to Congress to “leave no possible doubt” that this is a veto.

The Bush II veto statement again cites Pocket Veto, and takes up Clinton’s assertion of “my constitutional power to ‘pocket veto’ bills during an adjournment of Congress” and justifies sending the bill back to the House at the same time to “avoid unnecessary litigation” and “leave no doubt” that it is really a veto. A Bush spokesman added that this procedure “has been used a number of times over the past couple decades.”

Obama’s two veto statements jettison reference to the Pocket Veto Case and offers now only a single justification: to “leave no doubt” that this is really a veto. As Obama’s spokesperson said to a reporter, the protective return is now legitimate because it represents a “longstanding view” that such an action is legitimate and adds that “the House’s recess prevents” the president from returning the bill, even though that is exactly what he does.

One may argue that this is a failed executive, or at most small-bore, power grab, if it is even that. After all, Congress continues to object, in a bipartisan manner, to the protective return process, even holding override votes. Nevertheless, the protective return continues, nearly automatically—also in a bipartisan manner. The matter has not been adjudicated in over 20 years but may someday. Yet with the passage of time, the protective return continues to be exercised, and gain legitimacy, as its legless basis recedes into the mists of history. In short, a veto process invented to salvage an unjustifiable exercise of presidential power that was tried but abandoned is revived, sans history. Arguments used to discredit adventuresome presidential pocket vetoing are instead cited to justify it. A process that muddies the clear-cut constitutional veto process is perversely characterized as one that removes, rather than adds, doubt. And over time, sheer repetition of the act becomes the trump justification for its continuation. The struggle over this power is not over, but the executive has not lost by any means. In fact, it has already won to the extent that a formerly baseless and discredited argument is now treated as solidly precedent based. And the stakes are large, not small—an expanded absolute veto power for the president.

And so are new executive powers born (or expanded). Such has been the pattern for the more well-known case of war powers, for example, where the executive’s sharply circumscribed power over the use of American military force abroad, as it played out in the country’s first century, was gradually expanded by repeated presidential arguments and actions that muscular executive military power was both necessary and constitutional—a proposition widely accepted today both in Congress and in the country despite the absence of firm constitutional footing (e.g., Fisher 2004b; Spitzer 1993, chap. 5; Wormuth and Firmage 1989). The president’s general veto power expanded similarly, although constitutionally, in the nineteenth century through a similar pattern of progressively more expansive use in the face of fierce criticism when some presidential critics charged that presidents were exceeding the constitutional bounds of the veto power by using it too frequently or improperly against some types of bills, when in fact the Constitution imposes no limitations on veto use either as to frequency of use, or type of bill to be vetoed (Spitzer 1988, chap. 2). Executive privilege, though mostly accepted from the start of the country, has also undergone expansion in a similar pattern beyond its initial moorings (Fisher 2004a; Rozell 2010), finally achieving an express constitutional stamp of approval by the Supreme Court United States v. Nixon 197 ‘4).

While the day may come when the protective return is resolved by legislation or litigation, that day is not here now. As this account establishes, the protective return pocket veto’s suspect past has been progressively buried by a succession of presidential justifications, leaving only weak excuses for a hybrid veto process that can only give the executive more veto power than the Constitution, or common sense, would allow.