There could be a Constitutional showdown over a bill that sounds mind-numbingly dull but of potential import to homeowners and financiers alike.
President Obama is planning to issue his second pocket veto on the Interstate Recognition of Notarizations Act of 2009, a bill that would require courts to recognize out-of-state notarizations. He will send the bill back to Congress to correct certain "unintended consequences" contained in the legislation.
Consumer advocate groups argued that the law could make it more difficult for homeowners to challenge improper foreclosure attempts, a concern reflected in the administration's explanation.
"Our concern is unintended consequences on consumer protections, particularly in light of the home foreclosure issue in development with mortgage processors," White House Press Secretary Robert Gibbs said at today's press briefing. "He believes Congress did not intend for those unintended consequences to be in the legislation and we will as an administration work with Congress to fix this."
However, the announcement immediately raised questions about whether the use of the pocket veto is legal in this set of circumstances. A pocket veto is an indirect veto that occurs when a president refuses to sign outstanding legislation after Congress has adjourned. But Senate leaders agreed last week to schedule pro-forma sessions of the chamber every week until the lame-duck session in November. The deal prevented Obama from making recess appointments.
According to Robert Dove, a retired Senate parliamentarian who is now at Patton Boggs, the legal framework is a bit murky. According to a document Dove wrote while parliamentarian, "Enactment of a Law," federal appeals court has "held that a Senate bill could not be pocket-vetoed by the president during an 'intrasession' adjournment of Congress to a day certain for more than three days, where the Secretary of the Senate had been authorized to receive presidential messages during such adjournment."
The Supreme Court hasn't addressed pocket vetoes since 1929, according to Dove. There have been some lower court rulings, but "they have not, frankly, been followed," he said. When they haven't been followed, no one has challenged them, so it has not been put in front of the Supreme Court.
One possible work-around is that the White House sent the bill back to the House, which is not in session. The House is the chamber of origination and its adjournment might "prevent" the president from returning the legislation, which results in a pocket veto.
The last time Obama used the maneuver was in December 2009. He vetoed a stop-gap defense spending measure that became unnecessary when he signed the annual bill in time.
The foreclosure legislation, which was sponsored by Rep. Robert Aderholt, R-Ala., passed the House in April and cleared the Senate last week without public debate. It was sent to the president on Sept. 30.
Karl Eisenhower contributed to this report.
This article appears in the October 7, 2010, edition of National Journal Daily PM Update.