The 'pocket veto' peril

Pundits and pols who have been tracking President Bush's constitutional transgressions can add another to the list: his Dec. 28 "pocket veto" of the massive defense spending bill. Instead of issuing a regular veto, which allows Congress the opportunity to override if it can muster the votes, Bush stated that he needed to pocket veto the bill -- a power the Constitution says may only be used when "Congress by their Adjournment prevent [the bill's] Return." Bush argued that he was "prevented" from "returning" the bill to Congress because the House had adjourned.

But Bush was being disingenuous. In fact, a pocket veto was neither necessary nor allowed in this case. In misusing his veto power, Bush was attempting to grab a power for himself and his office that the Constitution's framers emphatically and repeatedly denied to the president: a nearly unlimited, absolute veto.

Let me explain. The Constitution requires the president to sign or veto any bill sent to his desk by Congress. In most cases, when a bill is vetoed, it is sent back to Congress, which then has the option to override the veto if it can achieve a two-thirds vote in both the House and the Senate. Under certain limited circumstances, however, the president may issue a pocket veto, a form of rejection in which he does not sign the bill or return it to Congress -- and the bill dies after 10 days. Congress has no opportunity to override the veto.

Article I, Section 7 of the Constitution stipulates the two conditions necessary for a pocket veto. The first is congressional adjournment. The second condition is that bill return is "prevented." These two linked conditions acknowledge the existence of adjournments when bill return is possible -- and the current situation is just such a case.

Although it's true that the House has adjourned until Jan. 15, it has designated its clerk to receive communications from the White House, including veto messages, meaning that bill return was possible. This little-known but routine mechanism has been used thousands of times for decades by Congress during long weekends, vacations and breaks (just as the White House's Office of the Executive Clerk receives bills from Congress on behalf of the president when he is absent or indisposed).

The Senate, for its part, has not adjourned at all, technically; a few of its members have been holding brief sessions every two or three days to forestall Bush from making any recess appointments.