Can Trump use a ‘pocket veto’ to block the popular housing bill?

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President Trump has thrown congressional Republicans into disarray again, this time with his cancellation on June 24 of the signing ceremony for the bipartisan 21st Century ROAD to Housing Act. Although the bill passed with uncharacteristic overwhelming majorities in both chambers of Congress and was formerly supported by Trump, he stated clearly his motive for the last-minute reversal: to leverage Congress to pass the so-called SAVE America Act, his ill-conceived legislation designed to disenfranchise millions of voters in the guise of combatting voter fraud.

Many sources have said that, with a looming summer recess for Congress, one option for him is to exercise a pocket veto to block the housing bill. In fact, this much misunderstood power is not an option for the president. The Constitution and precedent make clear why.

Once Congress formally sends an “enrolled bill” to the White House (what the Constitution calls “Presentment”), the president then has 10 days, not including Sundays, to sign the bill into law, veto it, or simply do nothing, whereupon the bill would become law without his signature. Unless, that is, “Congress by their Adjournment prevents its Return,” in which case the bill is pocket vetoed and dies without chance of congressional override. But no little confusion surrounds this last sentence and the prospect of a housing bill pocket veto.

For example, The New York Times reported that there are “legal questions” about whether a pocket veto is triggered if the veto occurs during the 10-day recess, set to begin on July 3, as Congress will not be “present” to receive the vetoed bill. Many other accounts have raised the same question.

In point of fact, this is no conundrum at all, as both the wording of the Constitution and past practice make clear.

Under the terms of Article I, Section 7, two conditions for a pocket veto must exist: Congress must be adjourned, and bill return must be “prevented.” These two distinct conditions in turn acknowledge the existence of adjournments where bill return is possible.

In fact, the return veto is actually preferred by the terms of the Constitution, as was the clear intent of the Framers. We know this because at the Constitutional Convention of 1787, they repeatedly and emphatically rejected a monarchical absolute or non-override veto for the president. The right of Congress to have a final chance at vetoed bills was essential to the checks and balances system they created. Obviously, a pocket veto provides no opportunity for an override vote.

So how is its presence in the Constitution explained? The answer is that the pocket veto was created to prevent Congress from ducking a veto by passing a bill and quickly adjourning to prevent the president from returning the measure. Without the pocket veto, an objectionable bill would simply become law after 10 days, whether the president signed it or not.

In the case of recesses, each house of Congress designates legal agents to receive veto messages and other communications. This routine mechanism has been used thousands of times by Congress for decades during long weekends, vacations and breaks, just as the White House receives bills from Congress on behalf of the president when he is absent or indisposed. Both procedures have met constitutional muster.

As the Supreme Court said in 1938, the “Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.” Further, the Senate will hold pro forma sessions during the break.

In short, Trump’s only constitutional action to block the housing bill, should he choose to do so, will be to issue a return veto. Given the veto-proof majorities that supported the bill in both houses, an override would seem likely, although no one should underestimate his ability to intimidate members of his party to bring them into line.

For a president known to have little sympathy for constitutional niceties, much less interest in them, the details of the veto power may mean little to Trump. But they mattered to the Founders, and therefore surely to us.

Robert J. Spitzer is distinguished service professor emeritus of political science at SUNY Cortland, and an adjunct professor at the College of William and Mary School of Law. He is the author of 16 books including “The Presidential Veto,””“President and Congress: and “The Presidency and the Constitution.“

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21st Century ROAD to Housing Act

Affordable housing

Congress

Donald Trump

override

Recess

SAVE America Act

veto pocket veto

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