Avoiding a Constitutional conflict

While you were preparing for your big New Year’s Eve party, the President’s Executive Clerk was deftly avoiding a Constitutional conflict. The effect isn’t earth-shattering, but I think it’s a fascinating example of how our Constitution works in practice. Consider this a lesson in your graduate course of How a Bill Really Becomes a Law (or doesn’t, in this case).

On December 30th President Obama vetoed his first bill. Before the annual appropriations bill to fund the Department of Defense was enacted into law, Congress had passed a “Continuing Resolution” (CR) to provide funding for continued Pentagon operations. Once the Defense approps bill had become law, the CR was no longer needed. So the President prevented it from becoming law by vetoing it. To my knowledge there was no policy dispute about the need to do this — everyone agreed that the CR was superfluous.

But how the President vetoed it is interesting, if you care about the details of how the Constitution works in practice.

To understand the conflict and how it was avoided, you need to understand how a “normal” veto and a pocket veto work.

First you need to understand how a “normal” veto works, usually called a return veto:

• The bill is passed by both Houses in identical form. This is the engrossed bill.
• The engrossed bill is then enrolled: the House (or Senate) Clerk assembles the actual parchment copy, which is then signed by the Speaker of the House (Pelosi) and the President Pro Tempore of the Senate (Byrd). For this example let’s assume the House Clerk.
• The House clerk then sends the enrolled bill to the President. Someone from the House Clerk’s office gets in a car and drives the bill to the White House and gives it to the Executive Clerk who works for the President. The technical term is that the bill is presented to the President. (“Presented” is in Article I, Section 7 of the Constitution.)
• The President decides to veto it.
• He instructs his Executive Clerk to return the bill to the originating House of Congress (in this case, the House of Representatives) “with his objections.” In this case the Executive Clerk returns it to the House Clerk, with a Memorandum of Disapproval from the President.
• The Congress can then try to override his veto (if they so choose). To do so they need 2/3 of the House and 2/3 of the Senate to override the veto.

The cool part of a return veto is that the President doesn’t ever have to see or touch the actual bill papers. There’s no veto stamp, and he doesn’t sign the memorandum of disapproval. He can do it all by phone. His Executive Clerk can handle the paperwork without the President’s signature.

This contrasts with the traditional process for signing a bill into law, for which the President must physically have the bill in front of him. This sometimes involves putting a staffer onto a plane to transport the bill to him (say, to Hawaii) before the 10-day deadline expires.

OK, let’s turn to a pocket veto. Here’s the relevant sentence, again from Article I, Section 7 of the Constitution:

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.

So the President doesn’t (normally) even have to sign a bill for it to become law, although he almost always does. The tricky part comes when Congress had adjourned. Let’s use the CR as our example:

• The House passed the CR (House Joint Resolution 64) by voice vote on Wednesday, December 16th. It passed the Senate by unanimous consent on Saturday, December 19th.
• On Saturday, December 19th, the House Clerk enrolled the CR and presented it to the President.
• The House adjourned for the year on December 23, and the Senate on December 24th.
• The 10-day clock expires on December 31st, since you don’t count Sundays. If the House is adjourned then to “prevent its return,” then the bill does not become law and we say the President has “pocket vetoed” the bill.

Now that we understand both a return veto and a pocket veto, let’s look at the Constitutional conflict. Please note that when I say “Congress” below, I am talking about the institutions of the Legislative Branch — the House and the Senate. Partisanship is in this case irrelevant. This conflict is about tension between the Legislative and Executive Branches of government, not between Republicans and Democrats.

Here’s the sentence again, which the relevant section in bold:

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.

Q: If the House of Representatives adjourns but leaves the House Clerk in town, does this “prevent the return” of a bill and mean the President cannot pocket veto it?

When the Constitution was young, there were long periods when Congress was not in session, so there was no one to receive a returned bill and convene Congress for a veto override vote. This was the birth of the pocket veto.

The Legislative Branch view is that the House of Representatives has appointed the Clerk of the House to act as its agent to receive Presidential messages. Since the House Clerk and Secretary of the Senate are always around, there is always a way for the President to return a bill with a resolution of disapproval, even if Congress has adjourned. Thus the Legislative Branch view is that a pocket veto is no longer possible. There’s an exception to this for when Congress adjourns sine die, meaning at the end of a Congress, which happens late in every even-numbered year. But the Legislative Branch view is that intrasession pocket vetoes are no longer possible, since the President can return a bill even when Congress has adjourned for several weeks (say, during August recess or at the end of an odd-numbered year).

The Executive Branch view is that even if the House of Representatives appoints its Clerk as its agent to receive an objected bill, the House Clerk is not the House, and the Constitution requires the bill to be returned to the House, not to an agent of the House. If the House has adjourned, then Congress has by their adjournment prevented the return of the bill, and the pocket veto is operable.

These different views create a risk that an intrasession Presidential pocket veto might be challenged by the Congress in court. Congress might argue in court that the CR (for example) became law after 10 days, even though the President did not sign it. That would be a silly policy outcome, but the Constitutional dispute can and should be separated from the policy question of what the bill would do.

The Executive Branch would rather not provoke this fight, so they use a belt-and-suspenders approach. The President pocket vetoes the bill and he return vetoes it. The President pocket vetoes the bill and does not sign it into law during the 10 days allowed him by the Constitution. He also returns it to the originating body of Congress (in this case the House) with a statement of his reasons for disapproving it “a return veto.” The President’s statement says that he is pocket vetoing it (the Executive Branch view), and he takes all the steps necessary to return veto it. The term of art is a pocket veto with protective return.

MEMORANDUM OF DISAPPROVAL

The enactment of H.R. 3326 (Department of Defense Appropriations Act, 2010, Public Law 111–118), which was signed into law on December 19, 2009, has rendered the enactment of H.J.Res. 64 (Continuing Appropriations, FY 2010) unnecessary. Accordingly, I am withholding my approval from the bill. (The Pocket Veto Case, 279 U.S. 655 (1929)).

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.

BARACK OBAMA
THE WHITE HOUSE,
December 30, 2009.

The result: the Legislative and Executive Branches agree that the bill has been vetoed, but for different reasons. The Congress says the bill has been return vetoed. The Executive Branch says the bill has been pocket vetoed. Since both agree the bill has been vetoed, there’s no opportunity for a court challenge.

Conflict avoided.

Kudos to the President’s Executive Clerk Tim Saunders for his many years of service to six Presidents. Kudos to the New York Times’ Peter Baker, the only MSM reporter I can find who wrote about this. And thanks to Brent McIntosh, former White House Deputy Staff Secretary, for once again teaching me how the Constitution works in practice. Thanks also go to another former colleague for his help.

If you found this post interesting, here is a description of how vetoes work here when things get fouled up: A messy end to a bad farm bill.

Happy New Year.

(photo credit: Bill Walsh)