Beginning in 1929, several judicial decisions have attempted to clarify when an adjournment by Congress prevents the President from returning a veto. In recent decades, Presidents occasionally have claimed to have pocket vetoed a bill but then have returned the legislation to Congress. This practice, often called a “protective return veto,” is controversial.
...Chad Pergram wrote at the time:
President George H.W. Bush attempted to pocket veto two bills during intrasession recesses. Congress considered the two bills enacted into law because the President had not returned the legislation. ... President George W. Bush characterized his veto of H.R. 1585 as a pocket veto. Since the 110th Congress treated it as a regular veto, this report counts H.R. 1585 as a regular veto. Most recently, President Barack H.Obama characterized his October 8, 2010, veto of H.R. 3808 as a “pocket veto.”
Congress may SEEM like it's out of session. But it's really not. The House adjourned last week until after the midterm elections. The Senate's truly not back in action until November 15. But every few days, a handful of senators meet in what's called a "pro forma" session. Senate Democrats carved a deal with Republicans to technically keep the Senate running in this fashion through next month. It's an effort to bar Mr. Obama from making recess appointments to the federal bench, his cabinet or to ambassadorships. If Congress is open for business, the president has to send such appointments to the Senate for "advice and consent." But the president can bypass the Senate if senators are adjourned for more than three days.
So the Senate is "here." The House is not. Thus, Congress isn't fully adjourned. So the president would have to just veto the foreclosure bill the old-fashioned way, right?
Apparently not. The White House contends it won't send any paperwork to Congress since it's out of session. And the president will just "pocket veto" the bill.
That's the problem.
The housing foreclosure bill is H.R. 3808. "H.R" doesn't stand for human resources or home run. It refers to the "House of Representatives." That means the bill in question originated in the House. Therefore, if the president uses a traditional veto on this measure, he would have to, as the Constitution says, "return it, with his Objections to that House in which it shall have originated."
If the bill started in the Senate, the White House would direct its veto message to that side of the Capitol.
But, House rules dictate that even when the House is out of session, it has provisions in which to always receive a "normal" veto from the president. The Clerk of the House is always available to receive such vetoes even if the House is not operating.But then POTUS did a protective return veto:
Presidential Memorandum--H.R. 3808
It is necessary to have further deliberations about the possible unintended impact of H.R. 3808, the "Interstate Recognition of Notarizations Act of 2010," on consumer protections, including those for mortgages, before the bill can be finalized. Accordingly, I am withholding my approval of this bill. (The Pocket Veto Case, 279 U.S. 655 (1929)).
The authors of this bill no doubt had the best intentions in mind when trying to remove impediments to interstate commerce. My Administration will work with them and other leaders in Congress to explore the best ways to achieve this goal going forward.
To leave no doubt that the bill is being vetoed, in addition to withholding my signature, I am returning H.R. 3808 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval.
THE WHITE HOUSE,
October 8, 2010.