Given the current standoff between the House, the Senate (collectively ‘Congress’) and the President over the appropriations in the budget bill, we thought it appropriate to address exactly what is and isn’t a veto, a pocket veto, and a protective return veto or protective return pocket veto.
First a review in case the last time you learned about this stuff was in high school: After Congress has sent a bill to the President for review and either signature or rejection, the President has ten days in which to either sign or reject the bill. If the President rejects the bill, they send it back to Congress with a statement of their objections to the bill (this is called the ‘veto message’).
Once the President rejects a bill and vetoes it, Congress can override the veto, passing the bill into law on their own without the President’s signature – however this requires two-thirds of the House and two-thirds of the Senate to vote to override the veto. This is a very high bar, especially as lawmakers are loathe to override their own party’s president, and getting to a 2/3s majority in both houses usually requires at least some same-party legislators to do that.
Now if, and this is important, during the 10 days after which the President has received the bill the President does nothing (does not sign or return the bill), and if during that 10 days Congress has stayed in session and is not in recess, then the bill automatically becomes law.
On the other hand, if the President does nothing, and during those 10 days Congress is in recess, then the bill dies. This is the essence of a pocket veto.
Specifically, 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.”
This all makes sense because in the first example, the President could have returned the bill to Congress, but chose not to. In the second example, there is no way for the President to return the bill to Congress if Congress isn’t there.
Article 1, section 7 of the Constitution also outlines the President’s veto power with two types of vetoes: the regular veto, and the pocket veto. Again, a regular veto is when the President refuses to sign the bill, and sends it back to Congress, stating his or her objections to the bill (the veto message), and why he or she won’t sign it, and a pocket veto is when the President does nothing with the bill – refusing to sign it, and rather than returning it to Congress, just sets it aside (“in his pocket”). This brings us back to the rules above: if Congress is in session, then in ten days the bill becomes law even though the President has not signed it (so really this should be called a “pocket acceptance” or a “pocket signature”). If during that 10 days Congress will be out of session, then that becomes a pocket veto.
Now this is very important to note: Congress cannot override a pocket veto. A bill subject to a pocket veto is dead, dead, dead. Congress would have to re-introduce the bill to breathe life back into it. On another, related note, because the bill died in the pocket, and the bill is not (in theory) being returned to Congress with a list of objections, when a President pocket vetos a bill, he issues a Memorandum of Disapproval, explaining why he pocket vetoed it.
The above scenario assumes Congress taking a 10-day break. It also assumes that the bill was returned by the President with remarks indicating their objections to the bill. But what if Congress just breaks for 2 days out of that 10 days? Actually, there is a move to consider any break of 3 days or more as an adjournment such as would allow a pocket veto. This is known, appropriately enough, as the “the 3-day Rule”. In a statement on the issue of 3 versus 10 days, John McGinnis, then of the Federal Office of Legal Counsel, opined that “Article I, section 5 of the Constitution states that neither House, during its session of Congress, shall without consent of the other adjourn for more than 3 days. Thus, we believe that the Constitution implicitly defines an adjournment of Congress, which takes place whenever either House goes out for more than 3 days.”
Or, what if the President refuses to sign the bill, and returns it to Congress, but without a veto message, i.e. without stating their objections to the bill? Can such a bill still be considered to be formally vetoed, such that it can be overridden? Or is this some veto limbo or loophole?
I put these questions to a Federal Congressional research analyst with whom I had a telephone call; they happen to be one of the analysts with expertise on Presidential vetoes.
The first thing they pointed me to was a little-known concept: the protective veto. Basically, in this scenario, the President fails to sign the bill during a period where Congress has taken a break, and claims the pocket veto, and then also sends the bill back to Congress, rejecting it.
Why would they do that? Any number of real or imagined reasons – it’s been done several times since the founding of our county. Most recently by Presidents Ford, George H.W. Bush, and Clinton, and always to the consternation of both lawmakers and the courts.
In fact, President Clinton explained what he was thinking in a statement to the House regarding a bill he had both pocket vetoed and then returned to the house, saying that “Since the adjournment of the Congress has prevented my return of H.R. 4392 within the meaning of Article I, section 7, clause 2 of the Constitution, 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, to avoid litigation, I am also sending H.R. 4392 to the House of Representatives with my objections, to leave no possible doubt that I have vetoed the measure.”
The issue in part is, as mentioned above, that pocket vetoes cannot be overridden, while returned vetoes can. When a President both kills a bill with a pocket veto and returns the same bill, very much alive, to Congress as a regular veto, it not only is hard to know what outcome they intended, but it can throw into question the legality of passing it into law, and individuals affected by the passage or non-passage of a protective vetoed bill may seek recourse in the courts if it is determined that the bill which became the law that affects them was passed improperly because it was dead from pocket veto before it was returned to Congress as a regular veto.
It’s useful to note that so far Congress has treated such double-vetoed bills as surviving the pocket veto when the bill is also returned to them for further consideration.
So what about the other question – can a President derail a piece of legislation by returning it but without any commentary or objections? Is that part of what is required in order for a veto to be properly exercised?
There is apparently no information about this that I could find anywhere, including with the government analyst with whom I spoke. Either it’s never happened, or Congress just considers the lack of written objections to be a general objection.
That said, the Constitution is extremely clear in its language about this: “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…”
“If he approve, he shall sign it, but if not he shall return it, with his objections”
In the law, “shall” is highly specific. It doesn’t say that he may, or that he should…it says that he must. ‘Shall’ is imperative.
You can read the full U.S. Constitution here.
So, the bottom line is that a president has two basic vetoes at their disposal: a regular veto, and a pocket veto. The regular veto is returned to the House or Senate, with written objections, so that Congress can revise the bill and send it up again. A pocket veto kills a bill entirely. A protective veto sends mixed messages, and is legally questionable, and so far no president (that we know of) has returned a bill to the House or Senate with no comments or stated objections, but if they did, it’s likely that the lawmakers in Congress would infer the objections, as they would almost certainly already know what they are.