On New Years Day, I wrote about President Bush's attempted use of the "protective return" pocket veto, and I referred to Professor Robert Spitzer's excellent work on the matter. Fortunate for us, Professor Spitzer has two pieces on this subject published today--one at the Los Angeles Times and the other at the History News Network.
There are a couple of interesting points over and above what I documented regarding this action. First, when past presidents have executed this action, they claimed precedent in the "Pocket Veto Case," a 1929 Supreme Court case that accepted Calvin Coolidge's pocket veto even though the Congress had delegated to an agent the responsibility of receiving messages from the president. You may recall that even though the House adjourned, Speaker Pelosi left the Clerk in charge to receive messages from the White House. The administration, like those before, argued that leaving a flunky behind does not constitute "in session." Furthermore, when Presidents Bush I, Clinton, and now Bush II defend the practice of the protective return, he cite this case. The problem is, as is often the case, this is an incomplete recitation of precedent. Not long after the "Pocket Veto Case," the Supreme Court addressed the issue of the pocket veto again. In Wright v US, the Supreme Court overturned its decision in Pocket Veto. This time, the Supreme Court supported the right of the Congress to designate a stand-in to receive messages from the president.
The second point comes near the end, where Professor Spitzer addresses why President Bush, in his last year of his presidency, advanced the protective return. His most compelling reason is to advance the president's constitutional powers "on the cheap." As my colleague and mentor Ryan Barilleaux has argued, this fits into a case of "venture constitutionalism," the president's persistent attempt to push the boundaries of Article II. This has underscored a number of actions this administration has taken over the last 7 years of its presidency. And for the most part it has been successful because the Congress has failed to challenge, which is what defines success from failure. Those who make this argument correctly note that a president will be successful at advancing power so long as it does not unite the collective will of the Congress. It is for this that I may take issue with Professor Spitzer. As we know, President Bush issued the pocket veto on a bill that had unanimous support in both chambers of Congress AND had the blessing of the administration until it vetoed it at the last minute. I think more to the point, the administration was caught in an ever more present vice that presidents find themselves in--the vice that pits domestic politics on one side and international politics on the other. Realizing that signing the bill would pick a fight with the Iraqi and other foreign governments and an overt veto would cause relationships across Party to form, the administration attempted to declare a pocket veto and then see "where the chips fell." This way they can say they made an attempt to stop the bill at the last minute while allowing the bill, in the end, to become law.
Nonetheless, Professor Spitzer's articles should be the authoritative, end all, be all of vetoes, pocket vetoes, and protective return pocket vetoes.
