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This article discusses the all-but-unknown practice of recent presidents to exercise a so-called "protective return" veto, whereby presidents simultaneously exercise both a return veto and a pocket veto for individual bills. Defended by recent administrations as a defense of the existing pocket veto power, this article argues that it is in fact an attempt to create a practical absolute veto, a power rejected by the Constitution's founders. Veto histoy and evolution are examined to explain and analyze this effort to redefine the president's constitutional veto authority.
In recent decades, students of the presidency have debated with no little fervor the extent to which the institution has become more imperial, especially and most importantly in the realm of constitutional authority. Many have argued that presidents have accumulated power beyond constitutional bounds in such areas as war powers (Adler 1988; Fisher 1995), secrecy (Johnson 1989), executive privilege (Berger 1974; Rozell 1994), budgeting and impoundment (Fisher 1975), and the use of signing statements (Garber and Wimmer 1987). While disputes over presidential use or abuse of constitutionally claimed powers are well known in areas such as war powers, other such executive aggrandizements are little known.
For example, in a recent issue of this journal, Cooper (2001) described the relatively unknown yet burgeoning practice of recent presidents' using memoranda in tandem with executive orders to mask actual policy initiatives. Cooper discussed several instances in which the first George H. W. Bush and Clinton administrations issued executive orders stating one goal or objective, then issued executive memoranda to initiate a very different, more controversial, and often covert, action. Cooper's important article is fascinating in the way it reveals the complexity of White House subterfuge that "is deliberately attempting to hide its intentions" (p. 138). The constitutional and policy consequences of this constitutional aggrandizement are considerable, a fact that takes on greater importance when compared with the extent to which this effort has proceeded nearly unimpeded and unnoticed.
The purpose of this article is to shed light on another area in which presidential aggrandizement of a constitutionally based power has steadily progressed below scholarly and political radar screens: so-called "protective return" pocket vetoes. This article will first discuss the basis for the pocket veto and its relationship with the regular veto....