Pocket Vetoing

Consider this scenario: in 2022, Republicans sweep to veto-proof majorities in both the House and Senate. (I agree, but work with me here.)

Let’s say that one of the bills that Republican Congress passes—late in the year after much debate—is either a tax reduction bill that permanently reduces even further both corporate and personal income taxes or (especially after much debate) a spending cut bill that cuts actual spending (not just slows increases) and that includes material reform of Social Security and Medicare.

Let’s say further that one of those bills is presented to a President Joe Biden right before Congress adjourns (not merely recesses) for the year-end holidays, an adjournment that will last for more than 10 days (as even many Congressional recesses do).

Biden doesn’t like the bill, never-minding its general popularity among Americans, or that it was passed by a veto-proof Congress. He can’t veto it outright, or it will simply be passed over his veto. So he pocket vetoes it—he takes no action at all.

Here’s what Article 1, Section 7 of our Constitution says:

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.

Leo Fisher has argued that such a “veto” wouldn’t hold up in court (in fact, the courts have never ruled directly on the matter) because this would be an absolute veto—Congress having no opportunity to attempt to override it as otherwise specified in our Constitution—and so would go directly against the Constitution’s authors’ intent. This, he intimates, flows from the otherwise not-signing for 10 days making the bill law, or the veto of the bill within those 10 days with an explicit Congressional override making it law that are provided for in the immediately prior sentences:

If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated…. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

Fisher’s argument fails because of that categorical and uncaveated clause: unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. That’s precisely an absolute veto, and it was written into our Constitution by its authors.

Thus, it strikes me that the matter is quite clear on two grounds (and yes, I’m aware of conflicting Supreme Court rulings that hint at the matter). One is that when Congress is adjourned, it is explicitly not in session, as opposed to merely taking a break for a bit, which is what a recess is. When Congress is not in session, it cannot receive anything—it’s simply not available. That decision creates the condition for an absolute veto.

The other ground is this: it’s easy for Congress to remain in session for the extra period needed to consume those 10 days within which a President must explicitly veto a bill and return the veto to Congress. By adjourning during those 10 days and not returning before the 10 days are expired, Congress is consciously creating the condition for a pocket—absolute—veto.

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