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A pocket veto is a legislative maneuver in federal lawmaking that allows the President to indirectly veto a bill. The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays) while the United States Congress is in session. From the U.S. Constitution Article 1, Section 7 states:

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.

If the President does not sign the bill within the required time period, the bill becomes law by default. However, the exception to this rule is if Congress adjourns before the ten days have passed and the President has not yet signed the bill. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. If the President does sign the bill, it becomes law. Ignoring legislation, or "putting a bill in one's pocket" until Congress adjourns is thus called a pocket veto. Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden (but see below). James Madison became the first president to use the pocket veto in 1812.[1]

Contents

Legal status

Courts have never fully clarified when an adjournment by Congress would "prevent" the President from returning a vetoed bill. Some Presidents have interpreted the Constitution to restrict the pocket veto to the adjournment sine die of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled in the Pocket Veto Case that a bill had to be returned to the chamber while it is in session and capable of work. While upholding President Calvin Coolidge's pocket veto, the court 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." In 1938, the Supreme Court overruled itself in part in Wright v. U.S., ruling that Congress could designate agents on its behalf to receive veto messages when it was not in session, 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." A three-day recess of the Senate was considered a short enough time that the Senate could still act with "reasonable promptitude" on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases.[2]

Current controversy

Recent events have brought the legal status of the pocket veto back to the forefront of American politics.

In December, 2009 President Barack Obama asserted a "pocket veto":

The enactment of H.R. 3326 (Department of Defense Appropriations Act, 2010, Public Law 111-118), which was signed into law on December 19, 2009, has rendered the enactment of H.J.Res. 64 (Continuing Appropriations, FY 2010) unnecessary. Accordingly, I am withholding my approval from the bill. (The Pocket Veto Case, 279 U.S. 655 (1929)).
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.
BARACK OBAMA
THE WHITE HOUSE, December 30, 2009.[citation needed]

In December 2007, President George W. Bush claimed that he had pocket vetoed H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008,"[3] even though the House of Representatives had designated agents to receive presidential messages before adjourning.[4] The bill had been previously passed by veto-proof majorities in both the House and the Senate. If the President had chosen to veto the bill, he would have been required to return it to the house whence it originated, which, in this case, was the House of Representatives. The House then could have voted to override the veto, and the Senate could then do likewise. In the event that each house had voted by at least two-thirds majority to override the veto, the bill would become law.[5]

House Speaker Nancy Pelosi (D-CA) stated: "Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote."[6] On January 1, 2008, Deputy Assistant to the President and Deputy Press Secretary Scott Stanzel stated: "A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law."[6]

Louis Fisher, a constitutional scholar at the Library of Congress indicated: "The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto."[7] By "absolute veto" Fisher was referring to the fact that a bill that has been pocket vetoed cannot be overridden. Instead, the bill must be reintroduced into both houses of Congress, and again passed by both houses, an effort which can be very difficult to achieve.

In the end, the House of Representatives did not attempt to override it. Instead, in January 2008, the House effectively killed H.R. 1585 by referring it to the Armed Services Committee. It then passed H.R. 4986, a bill nearly identical to H.R. 1585 but slightly modified to meet the President's objection, which subsequently became law.[8]

This is not the first time that a President has attempted to pocket veto a bill despite the presence of agents to receive his veto message. Both George H. W. Bush and Bill Clinton made similar attempts, and even further back in American history, Abraham Lincoln used it against the Wade-Davis Bill in 1864.[9]

See also

References

  1. ^ Fisher, Louis: The Pocket Veto: Its Current Status, Mar. 30, 2001.
  2. ^ Foster, Brian: Glossary of Legislative Terminology, UM Library updated June 09, 2005, Oct. 29, 2006.
  3. ^ Memorandum of Disapproval, Dec 28, 2007 [1]
  4. ^ Robert J. Spitzer, "Is Bush Inventing Another Constitutional Power?" History News Network, Jan. 7, 2008, [2]
  5. ^ The U.S. Constitution, Article 1, Clause 2 reads "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."
  6. ^ a b Paul Kiel, "Today's Must Read", Talking Points Memorandum, January 3, 2008. Retrieved 2010-02-03
  7. ^ The Hill, "Democrats say Bush can't pocket veto defense bill", Jan 2nd, 2008 [3]
  8. ^ GovTrack.us. H.R. 4986--110th Congress (2008): National Defense Authorization Act for Fiscal Year 2008, GovTrack.us (database of federal legislation) <[4]> (accessed Sep 22, 2008)
  9. ^ Robert J. Spitzer, The Law: The 'Protective Return' Pocket Veto: Presidential Aggrandizement of Constitutional Power," Presidential Studies Quarterly, vol. 31, no. 4, Dec. 2001, pp. 720-732.
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