SUNY-Cortland Professor Robert Spitzer, who studies the president and presidential power--and in particular the veto--took notice of, and responded to, an attempt by President Obama to use twist the language on the veto in a way to enhance the president's power over the Congress.
The issue is something known as the "protective return pocket veto," and Obama issued it on December 30 of last year (notice how it came on New Years Eve when no one was looking? Similar to President Bush's infamous torture signing statement of December 30, 2005). As Spitzer explains, the founders took pains to balance the relationship between the Congress and the president when it came to legislation.
As we all know, when the Congress passes a bill, it sends it to the president for his consideration. The president has ten days to act--sign it, not sign it, or veto it. Here is where the concern was--the veto gives the president a lot of control over legislation, and the Founders worried that it might be too much control. Thus instead of giving the president an absolute veto, they instead gave him a qualified veto, meaning that the Congress has the opportunity to override the veto, so long as it can must supermajorities in both chambers. The ten day clock was added to force the president to act, for without it the fear was the president would leave it on his desk and not act on legislation he did not like. On the other side, when the president vetoes a bill, he returns it to the Congress for action. Here is another potential problem dealt with by the Founders--what happens if Congress gives the president a bill that is controversial but then quickly adjourns, leaving him without anyone to return it to? In steps the pocket veto--any bill that has not run out the ten day clock when Congress adjourns is officially dead.
The protective return veto attempts to let the president have it both ways--vetoing a bill without sending it back to the Congress for action. President Obama's veto statement was titled "Memorandum of Disapproval"--which Spitzer notes is the nomenclature for the pocket veto, but in his message he wrote that the bill was vetoed though he cited Supreme Court precedent dealing with the pocket veto. As Spitzer argues, "...claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto power that could be used anytime Congress is not in session, giving the president the very power the Founders sought to deny the office."
This practice of trying to add language to the veto power denied by the Founders was begun by Ford and pursued--despite Supreme Court opinion to the contrary--by each president since. It also is a practice that corresponds to the rise presidential unilateralism following Watergate--something many believed would disappear with Obama but clearly has not. And given his attempt at subterfuge by delivering it on New Years Eve, hopefully when no one was looking, is more evidence that the new boss is the same as the old boss.
