The Law: The “Protective Return” Pocket Veto: Presidential Aggrandizement of Constitutional Power

In recent decades, students of the presidency have debated with no little fervor the extent to which the institution has become more imperial, especially and most importantly in the realm of constitutional authority. Many have argued that presidents have accumulated power beyond constitutional bounds in such areas as war powers (Adler 1988; Fisher 1995), secrecy (Johnson 1989), executive privilege (Berger 1974; Rozell 1994), budgeting and impoundment (Fisher 1975), and the use of signing statements (Garber and Wimmer 1987). While disputes over presidential use or abuse of constitutionally claimed powers are well known in areas such as war powers, other such executive aggrandizements are little known. For example, in a recent issue of this journal, Cooper (2001) described the relatively unknown yet burgeoning practice of recent presidents' using memoranda in tandem with executive orders to mask actual policy initiatives. Cooper discussed several instances in which the first George H. W. Bush and Clinton administrations issued executive orders stating one goal or objective, then issued executive memoranda to initiate a very different, more controversial, and often covert, action. Cooper's important article is fascinating in the way it reveals the complexity of White House subterfuge that "is deliberately attempting to hide its intentions" (p. 138). The constitutional and policy consequences of this constitutional aggrandizement are considerable, a fact that takes on greater importance when compared with the extent to which this effort has proceeded nearly unimpeded and unnoticed. The purpose of this article is to shed light on another area in which presidential aggrandizement of a constitutionally based power has steadily progressed below scholarly and political radar screens: so-called "protective return" pocket vetoes. This article will first discuss the basis for the pocket veto and its relationship with the regular veto. It then discusses pertinent case law, recent presidential experiments with the pocket veto, and the constitutional problems with that experimentation pertaining to protective return vetoes, a term and process so little known that this may be the first time the term has appeared in a published article. (1) The analysis concludes with an assessment of the merits and consequences of this idea. The Regular and Pocket Veto Powers 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 returns the bill "with his Objections to that House in which it shall have originated." The bill is then subject to 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' only alternatives to dealing with a pocket veto are to either stay in session for at least ten 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 ten days. The necessity of this provision is evident, as presidents could halt bills by simply withholding their signature. …