Growing Executive Power: The Strange Case of the 'Protective Return' Pocket Veto

Abstract

Recent presidents have carved out a presidential power by asserted constitutional right allegedly adhering to the presidency in the form of the so-called protective pocket veto, by which presidents claim to pocket veto a bill - a circumstance where, by definition, bill return to Congress is not possible - yet proceed to do the impossible by returning the bill to Congress. This obscure yet portentous power grab 1) arose, ironically, from adverse court rulings and a repudiation of the procedure, 2) illustrates the accretion of presidential power by the claiming of constitutional (as opposed to Neustadtian political) powers by presidents, and 3) exemplifies the ability of presidents to autonomously define, consolidate, and expand power over time. This paper excavates and examines the genesis of this obscure power claim and argue that it is incompatible with that which can be gleaned from textual construction, original intent, court rulings, and separation of powers principles.