Legal Commentary

President Obama?s Second Pocket Veto

By John Elwood

In other Executive-Legislative relations news, today the White House announced that President Obama was using the second ?pocket veto? of his presidency to disapprove H.R. 3808, the ?foreclosure documents? bill.  The official name of the bill is, if I am not mistaken, the Interstate Recognition of Notarizations Act of 2010, which has to set a new record for most ungainly name that does not yield a cool acronym (e.g., USA-PATRIOT, PROTECT Act, etc.)

Article 1, Section 7 of the 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.

Pocket vetos raise cause even more friction between the branches than the regular variety of veto because they turn on whether ?Adjournment prevent[s]? a bill?s return.  But Congress has designated agents to receive returned bills during recesses, and so Members of Congress often argue that pocket vetos are ineffective.  In an effort to make sure such bills are truly dead, presidents have taken to performing ?protective returns,? whereby they return the pocket-vetoed bill with a ?memorandum of disapproval? for the stated purpose of ?leav[ing] no doubt that the bill is being vetoed? (to quote President Obama?s first Memorandum of Disapproval). 

The $64,000 question is what happens if Congress purports to override a pocket veto, and someone has standing to get the issue into the courts.  But this is a relatively good time for the President to attempt such a gambit, at the beginning of a six-week recess, with congressional majorities of the President?s own party preoccupied with the coming midterm elections.

Full post as published by The Volokh Conspiracy on October 08, 2010 (boomark / email).