pocket veto

A pocket veto is a legislative maneuver in lawmaking that allows a president or other official with veto power effectively to exercise that power over a bill by taking no action.

Finland

The President of Finland has the power to pocket veto bills passed by the Eduskunta; however, such vetoes are temporary in effect.^[1]

India

The Indian Constitution places no requirement on the president to act on bills passed by the parliament unless the president has previously sent the bill back to parliament. By not taking any action on the bill, the president effectively vetoes it.^[2][3]

United States

The U.S. Constitution limits the President's period for decision on whether to sign or veto any legislation to ten days (not including Sundays) while the United States Congress is in session. If the Congress remains in session and the President does not sign or veto the bill, the unsigned bill becomes law. However, if Congress cuts short this period by adjourning and the President does not sign the bill, then the bill dies. This latter outcome is known as the "pocket veto." Article 1, Section 7 of the U.S. Constitution 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.

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.^[4]

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 reversed 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.^[5]

Recent usage

George W. Bush

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",^[6] even though the House of Representatives had designated agents to receive presidential messages before adjourning.^[7] 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 have become law.^[8]

Then 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."^[9] 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."^[9]

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."^[10] 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 the veto. Instead, in January 2008, the House effectively killed H.R. 1585 by referring it to the Armed Services Committee and passing H.R. 4986, a bill nearly identical to H.R. 1585 but slightly modified to meet the President's objection, which subsequently became law.^[11]

This was 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 Abraham Lincoln used it against the Wade-Davis Bill in 1864.^[12]

Other Use

Because a pocket veto cannot be overridden, it is sometimes used to describe situations where either one person, or a small group, can override the will of a much larger group without consequence. For example, when the California Supreme Court was answering the certified question of intervenor standing in the case of Perry v. Brown, one of the justices expressed concern that to not afford appellate standing to intervenors would mean that the State would "essentially get a 'pocket veto.'"^[13]

See also

• List of United States presidential vetoes
• Recess appointment

References