The Double Veto Crisis

A Constitutional crisis is brewing. A real one, this time.

Nearly lost in the news of all the recent elections was a veto by President Bush on December 28. Bush wanted more money to go to the military, and didn’t think that Congress had voted enough. Okay, fair enough.

Article I, section 7 of the Constitution describes two ways that a President can stop legislation passed by Congress from becoming laws. First, he can exercise his Constitutional power of veto. This triggers the ability of Congress to override the veto, by two-thirds majority in both houses, by a roll call vote. This is called a “return veto,” because the bill is returned to Congress. Second, if Congress is adjourned on the tenth day after it reports the bill to the President, and the President fails to sign it, the bill does not become law and because Congress’ adjournment prevents the President from returning the bill, there is no opportunity for Congress to override the veto. This is called a “pocket veto,” because the bill sits in the President’s pocket rather than becoming law.

If Congress adjourns, there is nothing to stop the President from exercising his return veto power if he disapproves of a law Congress passed just before adjourning. But why would he, when he could instead use the pocket veto, and not even give Congress the opportunity to override him?

Now, Congress and the President have been hostile before this, and in an attempt to curtail the “pocket veto” power, the two houses of Congress have designated their clerks as their “agents” for receipt of such messages while the Congress is in recess. In Wright v. United States, 302 U.S. 583 (1938), the Supreme Court addressed this issue and approved of the practice. The Court rejected the “artificial formality” of Congress not being in session so long as the clerical staff of at least one house was able to receive the President’s veto – to do otherwise would be ”to ignore the plainest practical considerations” of the reality of how government works. Wright indicates that the pocket veto is only properly exercised after a Congress dissolves – when its business is concluded and its members disperse, typically in mid-December of even-numbered years. (Each Congress sits in two year-long sessions, in between the bi-annual elections of members of the House of Representatives; those sessions typically begin on January 3 of each calendar year, or if the third falls on a Saturday or Sunday, on the Monday following that day.) Since the Wright case was decided, both houses of Congress routinely appoint their clerks, who are full-time staff, as their agents for the receipt of any messages from the President.

So let’s get back to the veto on December 28. The linked article above indicates that this is the second kind of veto, a “pocket veto.” But is that correct? In this case, the President issued what he called a ”Memorandum of Disapproval”. As with a more traditional veto message, he explained why he did not approve of the legislation. Here is the operative language from Bush’s memorandum:

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.

Bush’s message refers to Bands of the State of Washington v. United States and Okanogan, Methow, San Poelis, Nespelem, Colville, and Lake Indian Tribes v. United States 279 U.S. 655 (1929) (otherwise known as The Pocket Veto Case), it is silent as to Wright v. U.S., a case from nine years later.

In The Pocket Veto Case, Congress passed a law authorizing certain kinds of lawsuits by Indian tribes that had not been previously allowed. Congress reported the bill out of Congress on June 24, 1926. Ten days after that would have been July 6, 1926. On July 3, 1926, Congress adjourned for the summer. President Coolidge took no action on the bill. Later, several Indian tribes filed the lawsuits contemplated by the new law, and the lower Courts threw the cases out of court, saying that the law authorizing them had been subject to Coolidge’s pocket veto. The Supreme Court agreed, defining “adjournment” as any sustained cessation of legislative activity.

Presently, Bush claims that Congress has adjourned, and therefore he has the ability to exercise a “pocket veto.” But unlike Coolidge in 1926, he also returned the bill to the clerical staff of Congress – in part because Wright v. U.S. stated that a return veto issued after Congress went out of session would be valid, because Congress could receive a veto by way of its clerks, and could, in theory, reconvene to deliberate and vote on overriding a return veto.

Complicating this is the fact that the Senate has been holding pro forma sessions every three days. About every three days for the past month, a lone Senator has walked into the chamber, the clerk announces for the record that this Senator will be the day’s temporary presiding officer, and then the Senator indicates for the record that the Senate stands in recess for another three days. Senate Democrats have been doing this to prevent Bush from making “recess appointments” to various sub-cabinet and judicial positions until Congress formally reconvenes in its second session.

Now, if the President must dispense with “artificial formalities” under Wright, so must Congress, so we need to consider the pro forma sessions of the Senate in that light – the sessions are not being convened for the purpose of conducting legislative business. Congress is currently in recess, and it is in between its first and second sessions. But it is still political activity and the exercise of the Senate’s political power.

So realism about the pro forma sessions of the Senate really doesn’t get us that much closer to answer the question of whether Congress has “adjourned” for purposes of Article I, Section 7. The business of government goes on whether or not the President is on vacation, and whether or not Congress is in recess. The question under Wright is whether Congress could reconvene to vote on overriding a return veto, and it obviously could do so; while the pro forma sessions are not “legislative business,” they indicate that at least one House of Congress has the potential ability to meet, right now.

What’s more, both Houses of Congress were scheduled to meet, albeit for a pro forma session to open the second session of the Congress, on January 3, 2008 and then to immediately adjourn again. No legislative business was scheduled until January 15, however.

I’m doubtful, then, that this is a valid pocket veto. Congress is engaging in political activity, and so it has the ability to meet and deliberate on whether or not to override a return veto. (It might choose not to do so, but that’s a different story.) Democratic leaders of Congress are well aware of the issue, and determined to fight about it. It seems likely that Speaker Pelosi will call for a vote to override the veto shortly.

Some scholars have suggested that this is an attempt to grab an “absolute veto,” which was clearly not contemplated by the Founders and which is not authorized by the Constitution. That may be overstating things – but it does seem to me that what Bush was trying to do is to have it both ways – to pocket veto the law so that Congress can’t override his decision, but also do a return veto. The Congressional report of the status of the bill is that there was a pocket veto on December 28, but Congress may nevertheless attempt to override it. That has not, to my knowledge, ever happened before and does not make sense given what a pocket veto is.

The bill passed with overwhelming support in both houses of Congress, and so it seems likely that the veto could be overridden if the matter is brought to a vote.

One way to look at the President's actions is to say that he can do a return veto or a pocket veto, but not both -- and by trying to do both, he did neither, and therefore the bill has become law. That doesn't make any sense to me. The President clearly expressed an intent to exercise his valid Constitutional power to prevent this bill from becoming a law. If, following the guidance of the Wright case, we are to dispense with "artificial formalities," we can only conclude that the President's objections to the bill have some legal and political effect -- meaning, it ought not to become law despite his explicit disapproval and attempted exercise of power to prevent it from doing so.

So there are two Constitutional questions to resolve. First, can the President exercise both his return veto and pocket veto powers simultaneously? If so, the "Memorandum of Disapproval" was a valid exercise of the President's powers. Second, if the President cannot exercise a "double veto," then which kind of veto did he actually exercise on December 28? If it was a return veto, Congress can vote to override it.

I think that by returning the bill to the Clerk of the House on December 28, Bush exercised a return veto, meaning that a vote by Congress to override it would be valid. The very nature of a pocket veto is that the President take no action on the bill at all, and the bill expires. That's not what the President did -- his intent was to push for more funding than the bill provided.

But rather than “avoiding unnecessary litigation,” as the President indicated in his “Memorandum of Disapproval,” he seems to have precipitated it. The crisis can be avoided if Congress and the President work out a compromise on the underlying defense spending issue. But that doesn't seem likely to happen.