Will Republican Lawmakers Sue Pres. Obama Over How He Vetoed Greenhouse Gas Law?

Keep your eye on this issue raised by Professor Robert Spitzer in a WaPo oped:

In his two vetoes, Obama issued a so-called “protective return pocket veto,” whereby he announced a pocket veto and titled his veto message “Memorandum of Disapproval” (the name for a pocket veto message). But he then proceeded to return the two bills to Congress — a return veto. The justification for doing so is always the same: to “leave no doubt that the bill is being vetoed.”

The problem is that this gambit creates doubt because it combines two mutually exclusive actions: a regular veto and a pocket veto. Even more troubling, the history behind this veto mashup — claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress — is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto that could be used whenever Congress is not in session, giving the president the very power the Founders sought to deny the office.

This practice traces to former President Gerald Ford’s administration, when the president issued five such dual vetoes. Then-Sen. Edward Kennedy challenged these vetoes in federal district court, where he prevailed. Ford halted the practice and agreed to use a pocket veto only at the end of a two-year session of Congress. Yet the practice was resuscitated by President George H.W. Bush, who claimed to pocket veto two bills that he also returned to Congress. President Bill Clinton did the same thing three times in 2000, and President George W. Bush employed the practice once in 2007. Obama, meanwhile, has used the maneuver five times out of seven total vetoes.

The Republicans’ option is clear: Sue the president, arguing that the vetoes were facially unconstitutional because they combined two mutually exclusive procedures, and because Congress had designated legal agents to receive veto messages. Since Obama withheld his signature, the two bills, instead of being vetoed, should have become law without his signature after ten days.

An off the wall idea? Watch it move on the wall.

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