When is a Pocket Veto not a Pocket Veto

October 12, 2010

sidPresident Obama recently announced his intention to veto the Interstate Recognition of Notarizations Act of 2009. The act would make it easier for courts to recognize out-of-state notarization of mortgages and other financial documents. The problem is that there are questions about the legitimacy of some of these documents, so the President wants Congress to address these issues.

Instead of a traditional veto, the President intends to use a pocket veto. The pocket veto stems from the veto provision of the U.S. Constitution:

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. (USCA Const. Art. I, sec. 7, cl. 2)

In this case, the Senate was the body that passed the final version of the bill. But while the House has adjourned until after the mid-term elections, the Senate will be opened every 3 days to prevent the President from naming a recess appointment.

So, is “the Congress” is adjourned?

The White House feels that it is a proper use of the pocket veto. From the White House Press Secretary’s Regular News Briefing, which can be found on Westlaw in the CQ Capital Transcripts database (FDCHCAPTRPTS):

Question: Robert, (inaudible) says it’s not appropriate to pocket veto, will the president just veto it then?

We’re just getting some (inaudible) reaction from the Hill, so I’m just double-checking.

Gibbs: The president has — it’s my understanding from counsel, the president certainly has a constitutional — the constitutional ability to do that, and that’s what he’s exercising. 2010 WLNR 20039670

Simply returning the bill with objections would solve the problem, as would returning the bill to the House, which is adjourned.

For further discussion on this point, see the Congress Daily at 2010 WLNR 20068857

Because pocket vetoes are rare, there are few cases directly addressing them. On Westlaw or WestlawNext, simply do the following search in All Federal Cases:

sy,di(“pocket veto”)

If you would like to continue to follow the bill and its subsequent amendments, you can set up a WestClip in the US-BILLTRK database for “Interstate Recognition of Notarizations Act of 2009.”

Submitted by
Chas Neff
West Reference Attorney