Detainee Photographic Records Protection Act of 2009

Madam Speaker, I submit for the Record a copy of a letter signed jointly by myself and the Republican Leader, Mr. Boehner. It is addressed to President Obama. In it, we express our views on the limits of the ``pocket-veto'' power. I also submit a copy of the letters referenced therein.

Congress of the United States,

House of Representatives,

May 24, 2010.

Hon. Barack Obama,

The President, The White House,

Washington, DC.

Dear Mr. President: This is in response to your actions of

December 30, 2009, on House Joint Resolution 64, a short-term

continuing resolution of appropriations that was presented to

you on December 19, 2009. That measure was intended to

accommodate your review and approval of the regular

appropriations but was rendered unnecessary when you were

able to act swiftly on the regular appropriations. You

therefore decided not to approve the joint resolution.

Although you cited The Pocket Veto Case, 279 U.S. 655 (1929),

you returned the parchment to the House with a memorandum of

disapproval stating that you wanted to leave no doubt that

the joint resolution was being vetoed as unnecessary.

You acted on the joint resolution on the ninth day of the

10-day period during which you could approve it. The standing

rules of the House made the Clerk available to receive your

message. The House and Senate stood adjourned sine die but

with provision for reassembly of the first session and with

the certainty of reassembly for the second session of the

instant Congress. Thus, each body was in a position to

reconsider the vetoed measure in light of your objections,

either in the second session or even in the first session.

The circumstances surrounding the presentment and return of

House Joint Resolution 64 and the readiness of Congress to

reconsider the joint resolution in light of Presidential

objections compel us to question the assertion that a pocket

veto did or could have occurred. We think you agree that the

pocket veto and the return veto are available on mutually

exclusive bases and, therefore, during mutually exclusive

periods. We think you also should agree that the

constitutional concern that a measure not become law without

the President's signature when an adjournment prevents a

return veto does not arise when the President is able to

return the parchment to the originating House with a

statement of his objections. Accordingly, we believe that

your return of House Joint Resolution 64 with your objections

is absolutely inconsistent with this most essential

characteristic of a pocket veto, to wit: retention of the

parchment by the President for lack of a legislative body to

whom he might return it with his objections. Your successful

return of House Joint Resolution 64 establishes that you were

not prevented from returning it.

After an enrolled measure is presented for Presidential

approval, the parchment ultimately meets one of four ends. It

might be tendered to the Archivist by the President because

he signed it or allowed it to become law without his

signature. It might be referred to committee by the first

house to sustain a veto. It might be tendered to the

Archivist by the second house to override a veto. Or it might

be retained by the President because he ``pocketed'' it. If

the President returns a parchment to the Congress, then he

has not pocketed it, and it therefore is subject to

reconsideration. Either the Congress has prevented the

President from returning the parchment with a statement of

his objections or it has not. By returning the parchment a

President is admitting that he is not prevented from

returning it.

The House has treated your message of December 30, 2009, on

House Joint Resolution 64 as a return veto. On January 12,

2010, the message--comprising the parchment and your

memorandum of disapproval--was laid before the House. After

the memorandum was read, your objections were entered in the

Journal and the House obeyed the command of the Constitution

to ``proceed to reconsider'' the joint resolution. Rather

than immediately considering the ultimate question of

overriding or sustaining the veto, the House chose as its

first mode of reconsideration a postponement until January

13, 2010. On that day the House reconsidered the joint

resolution in light of your objections and voted by the yeas

and nays on the question of overriding or sustaining the

veto. The House sustained your return veto.

We enclose for your consideration copies of previous

letters to President George H. W. Bush, to President Clinton,

and to President George W. Bush, respectively dated November

21, 1989, September 7, 2000, and April 14, 2008. Those

letters from Speaker Foley and Leader Michel, from Speaker

Hastert and Leader Gephardt, and from the two undersigned,

respectively, expressed the profound concern of the

bipartisan leaderships over similar assertions of pocket

vetoes. We echo those concerns and urge you to give

appropriate deference to such judicial resolutions of this

question as have been possible.

Thank you for your attention to this matter.

Best regards,

Nancy Pelosi,

Speaker of the House.

John A. Boehner,

Republican Leader.