Pocket veto
Encyclopedia
A pocket veto is a legislative maneuver in United States federal lawmaking that allows the President
to veto
a bill indirectly.
The U.S. Constitution
limits the President's period for decision on whether to sign or veto any legislation to ten days (not including Sundays) while the United States Congress
is in session. If the President does nothing during this period while Congress remains in session, the unsigned bill becomes law. However, if Congress cuts short this period by adjourning and the President does not sign the bill, then the bill dies. This latter outcome is known as the "pocket veto." Article 1, Section 7 of the U.S. Constitution
states:
Since Congress cannot vote while in adjournment
, a pocket veto cannot be overridden (but see below). James Madison
became the first president to use the pocket veto in 1812.
of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled in the Pocket Veto Case
that a bill had to be returned to the chamber while it is in session and capable of work. While upholding President Calvin Coolidge's
pocket veto, the court said that the "determinative question…is not whether it is a final adjournment of Congress or an interim adjournment…but whether it is one that 'prevents' the President from returning the bill." In 1938, the Supreme Court overruled itself in part in Wright v. U.S., ruling that Congress could designate agents on its behalf to receive veto messages when it was not in session, saying that "the Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return." A three-day recess of the Senate was considered a short enough time that the Senate could still act with "reasonable promptitude" on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases.
claimed that he had pocket vetoed H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008", even though the House of Representatives had designated agents to receive presidential messages before adjourning. The bill had been previously passed by veto-proof majorities in both the House and the Senate. If the President had chosen to veto the bill, he would have been required to return it to the house whence it originated, which, in this case, was the House of Representatives. The House then could have voted to override the veto, and the Senate could then do likewise. In the event that each house had voted by at least two-thirds majority to override the veto, the bill would become law.
Then House Speaker Nancy Pelosi
(D-CA) stated: "Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote." On January 1, 2008, Deputy Assistant to the President and Deputy Press Secretary Scott Stanzel stated: "A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law."
Louis Fisher, a constitutional scholar at the Library of Congress
indicated: "The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto."
By "absolute veto" Fisher was referring to the fact that a bill that has been pocket vetoed cannot be overridden. Instead, the bill must be reintroduced into both houses of Congress, and again passed by both houses, an effort which can be very difficult to achieve.
In the end, the House of Representatives did not attempt to override it. Instead, in January 2008, the House effectively killed H.R. 1585 by referring it to the Armed Services Committee. It then passed H.R. 4986, a bill nearly identical to H.R. 1585 but slightly modified to meet the President's objection, which subsequently became law.
This is not the first time that a President has attempted to pocket veto a bill despite the presence of agents to receive his veto message. Both George H. W. Bush
and Bill Clinton
made similar attempts, and even further back in American history, Abraham Lincoln
used it against the Wade-Davis Bill in 1864.
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
to veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
a bill indirectly.
The U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
limits the President's period for decision on whether to sign or veto any legislation to ten days (not including Sundays) while the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
is in session. If the President does nothing during this period while Congress remains in session, the unsigned bill becomes law. However, if Congress cuts short this period by adjourning and the President does not sign the bill, then the bill dies. This latter outcome is known as the "pocket veto." Article 1, Section 7 of the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
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.
Since Congress cannot vote while in adjournment
Adjournment
An adjournment is a suspension of proceedings to another time or place. To adjourn means to suspend until a later stated time or place.-Law:In law, to adjourn means to suspend proceedings to another time or place, or to end them....
, a pocket veto cannot be overridden (but see below). James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
became the first president to use the pocket veto in 1812.
Legal status
Courts have never fully clarified when an adjournment by Congress would "prevent" the President from returning a vetoed bill. Some Presidents have interpreted the Constitution to restrict the pocket veto to the adjournment sine dieAdjournment sine die
Adjournment sine die means "without assigning a day for a further meeting or hearing". To adjourn an assembly sine die is to adjourn it for an indefinite period...
of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled in the Pocket Veto Case
Pocket Veto Case
The Pocket Veto Case 279 U.S...
that a bill had to be returned to the chamber while it is in session and capable of work. While upholding President Calvin Coolidge's
Calvin Coolidge
John Calvin Coolidge, Jr. was the 30th President of the United States . A Republican lawyer from Vermont, Coolidge worked his way up the ladder of Massachusetts state politics, eventually becoming governor of that state...
pocket veto, the court said that the "determinative question…is not whether it is a final adjournment of Congress or an interim adjournment…but whether it is one that 'prevents' the President from returning the bill." In 1938, the Supreme Court overruled itself in part in Wright v. U.S., ruling that Congress could designate agents on its behalf to receive veto messages when it was not in session, saying that "the Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return." A three-day recess of the Senate was considered a short enough time that the Senate could still act with "reasonable promptitude" on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases.
George W. Bush
In December 2007, President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
claimed that he had pocket vetoed H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008", even though the House of Representatives had designated agents to receive presidential messages before adjourning. The bill had been previously passed by veto-proof majorities in both the House and the Senate. If the President had chosen to veto the bill, he would have been required to return it to the house whence it originated, which, in this case, was the House of Representatives. The House then could have voted to override the veto, and the Senate could then do likewise. In the event that each house had voted by at least two-thirds majority to override the veto, the bill would become law.
Then House Speaker Nancy Pelosi
Nancy Pelosi
Nancy Patricia D'Alesandro Pelosi is the Minority Leader of the United States House of Representatives and served as the 60th Speaker of the United States House of Representatives from 2007 to 2011...
(D-CA) stated: "Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote." On January 1, 2008, Deputy Assistant to the President and Deputy Press Secretary Scott Stanzel stated: "A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law."
Louis Fisher, a constitutional scholar at the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...
indicated: "The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto."
By "absolute veto" Fisher was referring to the fact that a bill that has been pocket vetoed cannot be overridden. Instead, the bill must be reintroduced into both houses of Congress, and again passed by both houses, an effort which can be very difficult to achieve.
In the end, the House of Representatives did not attempt to override it. Instead, in January 2008, the House effectively killed H.R. 1585 by referring it to the Armed Services Committee. It then passed H.R. 4986, a bill nearly identical to H.R. 1585 but slightly modified to meet the President's objection, which subsequently became law.
This is not the first time that a President has attempted to pocket veto a bill despite the presence of agents to receive his veto message. Both George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
and Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
made similar attempts, and even further back in American history, Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
used it against the Wade-Davis Bill in 1864.