The Dodgy Dual Veto

The Huffington Post contains an interesting post by Political Scientist Robert Spitzer of SUNY Cortland who pens a letter to President Obama about Obama's first veto. According to Spitzer:

"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."

He continues:

"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."

As Spitzer points out, Obama is not the first president to us the "dodgy dual veto" (known officially as a "protective return pocket veto"). The practice dates back to the Ford administration where President Ford issued five such vetoes only to be challenged successfully in Federal court by Senator Edward Kennedy. President Bush 41 revived the protective return pocket veto and every one of his successors followed suit.

The dodgy dual veto is a wonderful example of how presidents, regardless of party or ideology, seek to expand the prerogatives of the office. It is also a reminder of why the American system has checks and balances built into it and the need for a vigorous Congress and judiciary to serve as a counter-balance to the executive branch as well as to each other.