- The Washington Times - Tuesday, January 12, 2010

The first veto of the Obama presidency was not supposed to be a big deal, but President Obama’s rejection of an obscure spending bill late last month is raising some unexpected constitutional questions.

Mr. Obama’s use of both a “pocket veto” and a regular veto on a stopgap spending bill approved by Congress Dec. 19 has at least one leading scholar questioning the move as a possible stealth White House power grab.

The Constitution “simply doesn’t give the president a multiple-choice option” on how to veto a bill, said Robert Spitzer, chairman of the political science department at State University of New York at Cortland and author of a noted book on the presidential veto.

The method used by Mr. Obama, Mr. Spitzer noted, has been a source of tension between the White House and Congress dating back to the Ford administration.

The White House Office of Management and Budget said Monday that Mr. Obama’s veto was “technical action intended to prevent the enactment of the stopgap funding measure that proved unnecessary.”

An OMB official, speaking on background, said that practical considerations, not executive power plays, dictated Mr. Obama’s veto process. The stopgap bill and the defense spending bill, for example, contained different expiration dates for certain federal programs and allowing both to proceed could have produced “real legal uncertainty,” the official said.

The official said Mr. Obama was following precedents set by his three predecessors dating back three decades in issuing the pocket veto and the regular veto, while acknowledging that legal and constitutional questions surrounding the process were still “unresolved.”

“Ultimately, if we ever reach the point of a disagreement, it would have to be resolved by the courts,” the official said.

The House of Representatives returns from its holiday recess this week, and Mr. Obama’s veto of H.J. Res. 64, issued with little fanfare during his Hawaiian vacation, is one of the first items on the docket.

Mr. Obama’s Dec. 30 “memorandum of disapproval” did not attack the substance of the bill, arguing only that the emergency spending measure had been “rendered unnecessary” when lawmakers subsequently passed a $626 billion long-term defense appropriations bill that covered all the programs in the stopgap bill.

With Congress not in session at the time, Mr. Obama announced he was exercising a “pocket veto” of the bill — a process outlined in the Constitution to handle situations where Congress is adjourned and the president simply refuses to act on a bill sent to his desk for signing.

But, in order to “leave no doubt that the bill is being vetoed,” Mr. Obama also issued a regular veto of the bill and returned it to Congress for action, which is why the House has the measure up for floor consideration Wednesday.

Mr. Spitzer criticized the blending of the two veto methods, which has been dubbed the “protective return pocket veto.”

Mixing the pocket veto — which cannot by overridden under the Constitution — with the regular veto “is a presidential power grab” designed to give the president “absolute veto power that could be used anytime Congress is not in session,” Mr. Spitzer said in a telephone interview.

Congress and the White House first clashed over the constitutional point under President Ford, and Presidents George H.W. Bush, Bill Clinton and George W. Bush all used the dual-veto method at least once during their presidencies.

Sen. Edward M. Kennedy successfully challenged Ford’s use of the practice in a lower court ruling, but the Supreme Court has never addressed the question of whether the protective pocket return veto passes constitutional muster.

• David R. Sands can be reached at dsands@washingtontimes.com.

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