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WASHINGTON
Mitch McConnell

Senate drops attempt to override Obama's 'double veto'

Gregory Korte
USA TODAY
Senate Majority Leader Mitch McConnell meets with reporters on Capitol Hill on May 5, 2015.

WASHINGTON — The Senate has abandoned an attempt to override President Obama's veto of a measure on union organizing rules, avoiding a constitutional confrontation over whether the unusual "pocket-and-return" veto was a legal use of the president's power.

By issuing a double-barreled veto on the same bill, Obama attempted to prevent Congress from overriding his veto and rolling back labor-friendly union organization rules. Legal scholars say he can issue only a pocket veto or a return veto, and so his use of both on the same bill may be unconstitutional.

For the Senate, the veto was historic: It marked the first time a president had issued the rare double-veto on a Senate bill, putting the Senate in the position of having to decide whether to recognize its constitutionality.

The Senate voted 96-3 Tuesday night to table Obama's veto message, effectively acquiescing in Obama's veto tactic.

In a pocket-and-return veto, sometimes called a "protective return pocket veto," the president withholds his signature in a pocket veto, but then also returns the bill to Congress. A returned veto can be overridden by Congress; a pocket veto cannot.

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The Constitution allows for a pocket veto on bills only when "Congress by their Adjournment prevent its Return." The Senate maintains it was not adjourned and had designated the secretary of the Senate to receive the veto message.

Senate Majority Leader Mitch McConnell, R-Ky., moved to table the override vote because Democrats insisted on a 60-vote, filibuster-proof threshold on a procedural vote — something that's never happened on a veto override in Senate history, said McConnell spokesman Don Stewart.

"That would have taken us the balance of the week," Stewart said. "It was a stalling tactic "

So the Senate voted 96-3 to permanently scuttle the override vote. " There will be other overrides though, I'm sure," Stewart said.

That lopsided, bipartisan vote is a clear sign that the decision was largely procedural, said Robert Spitzer, a political science professor at the State University of New York-Cortland and author of Presidential Veto: Touchstone of the American Presidency.

"This was not an effort to permanently bury Congress' objections to the manner of Obama's veto," said Spitzer, who has described Obama's veto tactic as "a back-door way to expand the veto power contrary to the terms of the Constitution."

Kevin Kosar, a fellow at the conservative-leaning R Street Institute, said the Senate should make time to protect Congress against encroaching presidential power. The pocket-and-return veto, he said, "insults Congress by attempting to deny it the right to override a veto."

The double-veto tactic was invented in the Ford administration as a way to protect a pocket veto from constitutional challenges after Sen. Edward Kennedy, D-Mass., successfully challenged President Richard Nixon's pocket veto of a health care bill. Since then, presidents have issued 14 such vetoes, including three of Obama's four vetoes. The first 13 bills came on House bills, and House leaders of both parties have protested by carrying out unsuccessful override votes.

The union representation procedures bill was an unlikely test case for an override anyway. It passed the Senate 53-46 and the House 232-186 — far short of the two-thirds majorities in each chamber that would be necessary to override.

The Senate's failure to override the veto means new National Labor Relations Board rules streamlining union elections can move forward. Republicans say those rules will allow for "ambush elections" that would unfairly favor union organizers.

Iowa Sen. Chuck Grassley was one of three Republicans voting to move forward with the override vote. "He thought the labor bill deserved debate on its merits, regardless of the controversial way the president handled the veto and the minority party's threat of tying up the Senate floor for several days over the issue," said spokeswoman Jill Gerber.

Follow @gregorykorte on Twitter

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