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

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 (1)--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. …