Mickey Kaus has checked the calendar and wondered if George Bush might issue a passive-aggressive veto on the Secure Fence Act passed last week by Congress. Normally, bills passed by Congress become law if the President signs them or does nothing for ten days, but the Constitution also provides an exception for this in Article I, Section 7:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; 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, who shall enter the Objections at large on their Journal, and proceed to reconsider it. 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. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. 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.

This is known as the pocket veto, and it has plenty of precedent. However, it is not as easy as it sounds. The Supreme Court has ruled in the past that an adjournment would have to be for a significant time to enable a pocket veto. Both houses of Congress adjourned on September 30th and are not scheduled to resume the session until Thursday, November 9th, two days after the midterm elections.

The Secure Fence Act passed Congress the day before its latest adjournment. Excepting Sundays as the Constitution requires, that would mean that Bush would have to sign the Act on October 11th at the latest. If he fails to do so, would that comprise a pocket veto? And as such, could Congress even take a vote to override it?

It certainly would be bad politics, and it might be a flawed tactic. No one disputes the ability to issue the pocket veto at the end of a session, but intrasession pocket vetoes are very controversial, although used by Reagan, Bush 41, and Clinton. Following a pocket veto by Nixon and a legal challenge to it by Congress, the DC appellate circuit held that intrasession failures to sign legislation does not prevent the President from returning the bill to Congress upon their return. Since then, Presidents have usually returned the bills to Congress in the interests of collegiality and to avoid having the Supreme Court issue a precedent-setting ruling that would wipe out intrasession pocket vetoes.

Robert Bork argued against the intrasession pocket veto during the Ford administration in his position as Solicitor General:

On January 26,1976, Solicitor General Robert Bork wrote a memorandum to Attorney General Edward Levi, concluding that President Ford should not exercise the pocket veto during intrasessions and intersessions, but only at sine die adjournment at the end of the second session, provided that Congress has authorized an officer or other agent to receive return vetoes.26 Bork reached that conclusion by taking into account both historical and practical considerations. He wrote: “We do not believe that the length of the intra-session adjournment can be constitutionally significant under modern conditions, so long as an agent remains behind who is authorized and available to receive a return veto. Nor do we regard the difference between intra-session and inter-session adjournments to require a difference in constitutional practice.”27 The use of a pocket veto, he wrote, “is improper whenever a return veto is possible.

Clinton's attempts at intrasession pocket vetoes all came in the last year of his presidency, and probably was meant to tweak the Congress that had impeached him. In all instances, however, he handled them as "protective return", and in two of the three cases, Congress took up override votes, treating his refusal to sign the bills as normal vetoes rather than as passage into law. In the third case, they replaced the bill with another that Clinton supported.

Will this history of tension between the executive and legislative branches get another spin in modern times? It seems odd that Bush has not yet signed the Secure Fence act, and his opposition to all but a comprehensive approach to immigration may be tempting him to spike the bill. If he thinks that will happen quietly, though, he is sorely mistaken, and that tactic will rebound horribly against a Republican Party that has enough trouble on its hands in these midterm elections. It would provide a fascinating showdown between the White House and Congress over the meaning of Article I, Section 7, and it may wind up giving the Supreme Court the final word on intrasession pocket vetoes that has been lacking for 200 years.

UPDATE: Some commenters think Bush already signed the Secure Fence Act last Wednesday. Not true. While in Arizona, he signed HR 5441, the appropriation bill for the Department of Homeland Security. The Secure Fence Act is HR 6061 and was not mentioned at all in Bush's remarks. In fact, the word "fence" appears nowhere in his remarks.

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