“It gives you a chance to make some rhetorical points,” Fisher said. “But legally and constitutionally, it looks stupid, and he doesn’t care.”
President Obama purported to issue both a pocket veto and a regular veto on the same bill Tuesday, a controversial practice that congressional leaders and some scholars say violates the Constitution.
It’s known as the “protective return pocket veto,” and there have been just 14 of them issued by Republican and Democratic presidents, all since the Ford administration. Three of Obama’s four vetoes have used this hybrid form, but Democrats and Republicans in Congress have objected to the practice and refuse to recognize its validity.
What’s the difference? A regular veto can be overridden. A pocket veto cannot. Exercising both vetoes on the same bill could some day lead to a constitutional dispute over whether a bill has become law, experts said.
“The Constitution gives the president two opposing choices. One is the pocket veto, the other is the regular veto. It offers no provision for combining the two somehow. It’s a perfectly ludicrous proposition,” said Robert Spitzer, an expert on the veto and a political scientist at the State University of New York, College at Cortland. “It’s a back-door way to expand the veto power contrary to the terms of the constitution.”
The White House would not discuss its legal justification for the form of the veto on the record. But previous presidents have used the hybrid veto “to avoid unnecessary litigation” about the fate of a bill. A spokesman for President George W. Bush once explained that the pocket-and-return veto meant they were “covered either way.”