Obama's hybrid 'pocket veto' on notarization bill raises questions

WASHINGTON — In some circles, President Obama's veto of an obscure bill this month has proved more controversial than the legislation itself. The White House called it a "pocket veto." Some constitutional experts beg to differ.

Does it matter? Yes, a lot. Not for the bill at hand, though, which would have liberalized rules for notarizing documents. Despite having passed both the House and Senate unanimously, it is considered dead — an unexpected casualty of the fallout over the mishandling by lenders of home-foreclosure paperwork. Obama said the measure could have weakened consumer protections.

What has raised questions is not his motive, but his method. Knowing that Congress soon would return for a lame-duck session, Obama nevertheless claimed to have killed the bill merely by withholding his signature — the pocket veto. But at the same time he sent it back to Congress, like a regular veto subject to reversal.

It was just the latest pull in a long tug of war between the executive and legislative branches.

The distinction between a pocket veto and a regular veto goes to the fundamental constitutional balance of powers guarded by both branches. A pocket veto kills legislation outright, giving the president the final say; a regular veto allows Congress the last word if two-thirds of the House and Senate vote to override the veto.

Presidents appreciate the pocket veto's finality. But the framers of the Constitution rejected such absolute presidential power.

Unsigned bills, they specified, become law unless returned to Congress for reconsideration within 10 days, not counting Sundays — with one exception. So that Congress would not send controversial bills to the White House and then adjourn to dodge a veto, the framers provided that if Congress adjourned, the president could veto a bill simply by not signing it within 10 days.

Donald Ritchie, the Senate historian, said the pocket veto, first used in 1812, got its name in the time of Abraham Lincoln; as he signed bills at the end of Congress' session in 1864, he supposedly stuffed those he opposed into his pocket, unsigned.

According to Robert Spitzer, a political scientist at the State University of New York in Cortland and author of the "Presidential Veto," President Gerald Ford invented what the Justice Department termed the "protective return pocket veto."

During a monthlong congressional break for the November 1974 elections, he claimed to pocket-veto five bills but also sent them back to Congress — typically the step that allows an override attempt.

Obama has used the hybrid approach once before, vetoing a stopgap defense-spending bill because he had just signed a different bill providing the same money for the military.

This time, too, the two branches may work something out. But that will not mollify those who see an unwarranted attempt to expand presidential power.