- The Washington Times - Tuesday, January 11, 2011

President Obama’s veto pen didn’t see much action in the past two years, but history suggests that’s likely to change now that Republicans control the House and want to dismantle some of his marquee legislative achievements.

While Mr. Obama issued a number of veto threats, he ended up signing nearly every bill that was sent to him by a Democrat-led Congress, including some he expressed misgivings about. Exercising just two pocket vetoes, he managed to work with lawmakers to avoid any real policy showdowns.

The new balance of power is expected to alter that calculus. Even with his party still holding the reins in the Senate, precedent shows Mr. Obama may want to gird himself to enforce some of his threats.

“A veto comes across as a very negative weapon, and I think you certainly don’t want to be accused of that when your party’s in the majority,” said Kathryn Dunn Tenpas, a political science professor at the University of Pennsylvania. “Clearly, the expectations are Obama should be vetoing much more frequently now that he’s facing divided government.”

During periods of unified government - when a single party controls both the White House and Capitol Hill - presidents veto two bills a year on average, Ms. Tenpas said. That average jumps to six when another party takes control of Congress.

On two occasions, Mr. Obama refused to sign relatively obscure legislation, most recently a foreclosure notarization bill last October, but he has yet to use his traditional veto power. Most of his veto threats have been over unwanted spending, such as an alternate engine for the F-35 fighter jet, which the Pentagon has said it doesn’t need but has nevertheless been added by Congress to spending bills.

In some instances, Mr. Obama signed those spending bills despite his stated opposition to certain provisions or the number of earmarks. Before a controversial omnibus bill was pulled last month, the White House said the president was prepared to sign it even though it included the F-35 engine - the subject of a veto threat Mr. Obama made last spring.

Asked about the president’s veto strategy, White House spokesman Bill Burton said Mr. Obama “takes every piece of legislation on a case-by-case basis.”

Because Democrats still control the Senate, experts say it’s unlikely that a divided Congress will send Mr. Obama sweeping pieces of legislation that he’ll oppose, but rather, send smaller bills that could undermine his initiatives.

“They’re not going to get health care reform overturned in the Senate, so it won’t be presented to the president,” Robert J. Spitzer, a State University of New York at Cortland political science professor and author of “The Presidential Veto,” said of House Republicans’ effort to repeal Mr. Obama’s foremost achievement. “On the other hand, there may be smaller-bore pieces of legislation or highly objectionable provisions, maybe chipping away at health care reform, for example, attached to appropriations bills or attached to other legislation.”

Of course, the GOP doesn’t have the two-thirds majority to override a veto by Mr. Obama the way the Democrat-controlled Congress was able to stymie his predecessor, former President George W. Bush, who saw three vetoes overturned during his final year in office.

Strikingly, Mr. Bush went more than five years in office without using his veto pen - something Ms. Tenpas said had not happened since Thomas Jefferson was in the White House. Mr. Bush first used it in July 2006 to reject an effort by Congress to overturn restrictions on federal funding for stem-cell research. Mr. Bush ramped up his use of veto power after Democrats took over both chambers of Congress in January 2007, nixing 11 more bills before leaving office.

Still, 12 bills in eight years is low, according to historical standards. President Clinton vetoed 37 bills during his eight years, while Mr. Bush’s father, George. H. W. Bush, vetoed 44 bills in four years. President Reagan rejected 78 bills during his two terms in office.

The younger Mr. Bush was criticized for his use of “signing statements” to nullify certain parts of a given piece of legislation - a practice that Mr. Obama, a former constitutional law professor, scorned on the campaign trail. In his first two years in office, the president has followed through on his pledge to cut down on the use of such statements accompanying signed bills, issuing about 15 thus far.

Mr. Obama most recently used a signing statement late Friday, when he signed a defense authorization bill that contained a provision barring the transfer of prisoners from the detention facility at U.S. Naval Base Guantanamo Bay, Cuba, to the United States. Mr. Obama said he opposed the measure and would work to repeal it, but he stopped short of declaring it void.

While Mr. Obama’s infrequent reliance on signing statements has escaped the ire of constitutional scholars, his use of the pocket veto has rankled some experts who question his return of the unsigned measure to Congress as if it were a traditional veto that could be overridden. Traditionally defined, a pocket veto is when presidents kill a bill by withholding their signature while Congress is adjourned, in a move that cannot be reversed by lawmakers.

In two instances, Mr. Obama used a “protective return pocket veto” by refusing to sign a bill, yet returning it to Congress. While other presidents dating back to Gerald R. Ford have used this controversial “hybrid” tactic, the Supreme Court has not weighed in and experts debate its impact on the separation of powers.

“It’s constitutionally inappropriate, at least,” Mr. Spitzer said.