03/18/2010 05:12 am ET | Updated May 25, 2011

Pres. Obama: Don't Make This Veto Mistake

Dear Mr. President, I, along with many other Americans, applaud your willingness to break with the bad practices of your predecessors, especially those of your immediate predecessor. Just last week, for example, your executive order and accompanying memorandum to agency heads directing that agencies overhaul their documents classification procedures will restore sanity and appropriate sunlight to the mindless over-classification of government documents.

On December 30, however, you mimicked an action of your predecessors that pointlessly reopened a constitutional can of worms by the manner in which you exercised the very first veto of your presidency. As your veto statement said, the bill you vetoed, a continuing appropriations bill, was rendered unnecessary because of the enactment of a defense appropriations bill signed into law on December 19. So far so good.

At this point, you had two veto options: to either return the bill with your objections to Congress, whereupon it could take up the matter at the start of the 111th Congress's second session in early January, or to issue a pocket veto, which kills the bill without return to Congress. But the Constitution does not allow presidents to pick and choose the kind of veto they wish to use. The regular or return veto is preferred by the terms of the Constitution, as was the clear intent of the Framers. We know this because they repeatedly and emphatically rejected a monarchical absolute or non-override veto for the president. The right of Congress to have a final chance at vetoed bills was essential to the checks and balances system they created.

Yet the pocket veto is absolute in its effect, because the bill dies without return to Congress, so how is its presence in the Constitution explained? The answer is that the pocket veto exception was inserted to prevent Congress from ducking a veto by passing a bill and quickly adjourning to prevent bill return of an anticipated veto (without the pocket veto, an objectionable bill would simply become law after ten days).

Moreover, the regular veto is unconditional, but the pocket veto, under the terms of Article I, Section 7, has two conditions for its use: the first is congressional adjournment; the second is that bill return is "prevented." These two linked conditions in turn acknowledge the existence of adjournments when bill return is possible.

So how can a regular veto be used if Congress is not in session? Simple: each house designates legal agents to receive veto messages and other communications. This routine mechanism has been used thousands of times by Congress during long weekends, vacations, and breaks, for decades, just as the White House receives bills from Congress on behalf of the president when he is absent or indisposed. Both procedures have met constitutional muster. As the Supreme Court said in 1938, the "Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return."

Here's the problem with your veto: instead of issuing a regular or return veto, your message was titled "Memorandum of Disapproval," indicating that this was a pocket veto. But your message then said this: "To leave no doubt that the bill is being vetoed ... in addition to withholding my signature, I am also returning H.J.Res. 64" to the House.

The problem is that your action creates doubt because it combines two mutually exclusive actions: a regular veto and a pocket veto. Even more troubling, the history behind this veto gambit - 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 dodgy dual veto, called a "protective return pocket veto," traces to the Ford administration, when the president issued five such dual vetoes. Senator Edward Kennedy challenged these vetoes in federal district court, where he prevailed. Ford then halted the practice and agreed to use a pocket veto only at the end of a two year congress. Yet the practice was resuscitated by the first President Bush, who claimed to pocket veto two bills that he also returned to Congress. President Clinton did the same thing in three instances in 2000, and the second President Bush employed the practice once in 2007.

Mr. President, the advice you received on how to veto this bill was fatally defective. Yes, some of your predecessors have used this gambit, but it's an affront to the Constitution, it's unnecessary, and it thwarts the separation of powers. It's time to renounce this bogus veto gambit.