What Is a Pocket Veto?

President Barack Obama sitting behind the Resolute Desk in the Oval Office.

Obama White House / Flickr / Public Domain

A pocket veto occurs when the President of the United States fails to sign a piece of legislation, either intentionally or unintentionally, while Congress is adjourned and unable to override a veto. Pocket vetoes are fairly common and have been used by almost every president since James Madison first used it first in 1812.

Pocket Veto Definition 

The Constitution grants the president 10 days to review a measure passed by the Congress. If the president has not signed the bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law.

The president's inaction on the legislation, while Congress is adjourned, represents a pocket veto.

Presidents Who Have Used the Pocket Veto

Modern presidents who have used the pocket veto — or at least a hybrid version of the pocket veto — include Presidents Barack Obama, Bill Clinton, George W. Bush, Ronald Reagan, and Jimmy Carter. 

Difference Between a Regular Veto and a Pocket Veto

The primary difference between a signed veto and a pocket veto is that a pocket veto cannot be overridden by Congress. This is because the House and Senate are, by the nature of this constitutional mechanism, not in session and therefore, unable to act on the rejection of their legislation.

Purpose of the Pocket Veto

So why does there need to be a pocket veto if the president already has veto power?

Author Robert J. Spitzer explains in "The Presidential Veto:"

The pocket veto represents an anomaly, as it is a kind of power the founders flatly rejected. Its presence in the Constitution is explainable only as a presidential defense against abrupt, untimely congressional adjournment aimed at thwarting the president's ability to exercise the regular veto power.

What the Constitution Says

The U.S. Constitution provides for the pocket veto in Article I, Section 7, which states:

"If any bill shall not be returned by the President within 10 days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it." In other words, according to House of Representatives archives:

The pocket veto is an absolute veto that cannot be overridden. The veto becomes effective when the president fails to sign a bill after Congress has adjourned and is unable to override the veto.

Controversy Over the Pocket Veto

There is no dispute that the president is granted to the power of the pocket veto in the Constitution. But it is unclear exactly when the president is able to use the tool. Is it during the adjournment of Congress after one session ends and a new session is about to begin with newly elected members? This is a period known as the sine die. Or is the pocket veto meant to be used during routine adjournments in a session?

"There is an ambiguity as to which kinds of adjournments the clause covers," wrote David F. Forte, a professor at Cleveland-Marshall College of Law.

Some critics argue the pocket veto should be used only when Congress adjourns sine die. "Just as the president is not permitted to veto a law simply by not signing it, so should he not be permitted to veto a law simply because Congress has recessed for a few days," wrote Forte of those critics.

Nonetheless, presidents have been able to use the pocket veto regardless of when and how Congress adjourns.

Hybrid Veto

There's also something called the pocket-and-return veto in which the president uses the traditional method of sending the bill back to Congress after effectively issuing a pocket veto. There have been more than a dozen of these hybrid vetoes issued by presidents of both parties. Obama has said he did both "to leave no doubt that the resolution is being vetoed." 

However, some political scientists claim there's nothing in the U.S. Constitution that provides for such a mechanism.

"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," Robert Spitzer, an expert on the veto and a political scientist at the State University of New York College at Cortland, told USA Today. "It's a backdoor way to expand the veto power contrary to the terms of the constitution."

Sources

  • Forte, David F. (Editor). "The Heritage Guide to the Constitution: Fully Revised Second Edition." Matthew Spalding (Editor), Edwin Meese III (Foreword), Kindle Edition, Revised edition, Regnery Publishing, 16 September 2014.
  • Korte, Gregory. "Obama's fourth veto protects unionization rules." USA Today, 31 March 2015, https://www.usatoday.com/story/news/politics/2015/03/31/obama-nlrb-unionization-ambush-election/70718822/.
  • Korte, Gregory. "Obama's pocket veto on shaky legal ground, experts say." USA Today, 1 April 2015, https://www.usatoday.com/story/news/politics/2015/04/01/obama-protective-return-pocket-veto/70773952/.
  • "Pocket Veto." United States Senate, 2020, https://www.senate.gov/reference/glossary_term/pocket_veto.htm.
  • "Presidential Vetoes." Office of the Historian, Office of Art & Archives, Office of the Clerk, 6 January 2020, https://history.house.gov/Institution/Presidential-Vetoes/Presidential-Vetoes/.
  • Spitzer, Robert J. "The Presidential Veto." SUNY series in Leadership Studies, Hardcover, SUNY Press, 1 September 1988.