Congress returns from its two week break on Monday. If it has any respect for itself, it will promptly schedule a vote on President Obama’s most recent veto.
The nixed bill was a resolution to strike down new regulations issued by the National Labor Relations Board in mid-December. These new rules, which run 180 pages, would have the effect of making it easier to unionize certain workplaces. Senator Lamar Alexander, (R-Tenn), who introduced S.J. Res. 6, said the new regulations allow “a union to force an election” to decide whether to unionize “before an employee has a chance to figure out what is going on.” To the concern of some in Congress, the rules would also force employers to provide union advocates with employees’ email addresses and phone numbers.
This was the first time Congress had fully utilized the Congressional Review Act since 2001. Thanks to fast-track rules for such resolutions, both chambers passed the legislation in less than a month.
Congress likely does not have the votes needed to override the veto. The legislation passed along party lines, with 53 ayes in the Senate and 232 yeas in the House. Leadership in both chambers should nonetheless schedule an override vote.
For one, voting to override the veto will signal to the White House that Congress is serious about having a role in regulatory policy. For too long, Congress has treated regulation as an afterthought, or worse, an issue to ignore and then demagogue. Senators Roy Blunt, Angus King, Mark Kirk and others have introduced promising bills to curb the explosion in regulation. Congress passes perhaps 50 significant laws per year. The executive branch issues 80 to 100 major rules per year, to the tune of $100 million or more each in economic impact.
For another, Obama’s veto was issued in an insulting and unconstitutional manner. The president claimed he was issuing a pocket veto. Yet he also returned the legislation to the Senate, where it originated.
Article I, Section 7 of the U.S. Constitution sets the legislative process: When the president issues a veto, he must return it to the chamber from whence it originated. If, however, “Congress by their adjournment prevent its return,” then the president may veto it once and for all with the stroke of his pen. “It shall not be a law.” It is an either/or choice; either one vetoes or one pocket vetoes. That a Senate designee received Obama’s veto makes his assertion of a pocket veto “gibberish,” as one constitutional scholar put it.
Obama, as has been reported, is not the first president to issue both types of vetoes at once. This dubious practice goes back to the Ford Administration, at least. The “protective return veto,” as it is termed, aims to allow the president to kill legislation while denying Congress the right to override it.