10/08/2010 01:58 pm ET Updated May 25, 2011

President Obama: Veto Yes; Pocket Veto, No!

Mr. President, your October 7 announcement that you plan to veto a bill that has as its stated, and seemingly unexceptional purpose, of streamlining the recognition of notarized statements across state lines will be welcomed by consumer groups and others who fear that the bill would make it tougher for homeowners to challenge improper foreclosure attempts. And your stated justification -- that you "believe it is necessary to have further deliberations about the intended and unintended impact of this bill on consumer protections, including those for mortgages" -- expresses a perfectly sensible caution.

But Mr. President, your intention, as repeated in news reports, to employ a pocket veto instead of a regular or return veto, is flat-out wrong, and there are three reasons why. First, the Constitution prefers the regular or return veto over the pocket veto. We know this because the framers emphatically and repeatedly rejected giving the president an absolute or no-override veto. In fact, the reconsideration of hastily conceived legislation was a prime concern of the framers. It is why they viewed the veto as a constructive power -- not merely the president saying "no" -- that would give both the president and Congress one final chance to improve legislation.

Second, the pocket veto -- which is absolute in its effect, because the bill dies without being returned to Congress -- can only be exercised under two conditions, described in Article I, Section 7 of the Constitution: the first is congressional adjournment, and the second is that bill return is "prevented." Yes, Congress has adjourned, but not sine die (literally, "without a day"). According to the Office of the House Parliamentarian, the House is in adjournment until November 15. Under Clause 2(h) of Rule II of the Rules of the House, the Clerk of the House is empowered to receive veto messages and other communications. This procedure has been used thousands of times for decades, and has passed constitutional muster. So if, as I say, the framers rejected an absolute veto for the president, why does he have the pocket veto, which is absolute in its effect? The answer was to prevent Congress from ducking a veto by passing a bill and quickly adjourning to avoid an anticipated veto, which depends on bill return. (Without the pocket veto, an objectionable bill would become law after ten days with or without the president's signature.)

Third, you can return the bill, H.R. 3808, to its house of origin, just as you said in your public statement. Therefore, that is what you must do if you intend to veto -- treat this as a regular or return veto. The constitutional procedures are clear, and so is your course of action.

Finally, if your intention to utilize a so-called "protective return" pocket veto (where the president returns the bill to Congress, but calls it a pocket veto not subject to override), as you did for the only other bill you have vetoed as president, that procedure is plainly extra-constitutional, utterly suspect, and completely unnecessary. The Constitution does not give presidents the option of choosing, or worse inventing, a veto method. Repeating that mistake would be worse than no veto at all.

Spitzer is the author of The Presidential Veto among other books.