Comments (102)

Anonymous wrote on January 3, 2008 10:01 AM:

Anyone else surprised?

danger wrote on January 3, 2008 10:05 AM:

I did want to go to law school to practice Constitutional law, until I realized that I'd have to live through this administration again for another three years of studies.

Anyhow, it sure looks like they're pulling a Fourthbranch logic train here. This one can't possibly hold up in court, but that we're even having this debate, like so many others we've all had with this administration, is total lunacy. Perhaps this blatant disregard for basic Constitutional procedure could convince the House to finally move forward with impeachment? I'm not holding my breath.

Anonymous wrote on January 3, 2008 10:10 AM:

Misdirection, people. Quick, look at the shiny ball in my right hand while my left hand vetoes a military spending bill without catching flak for it!

ilitigant wrote on January 3, 2008 10:14 AM:

Congress is comprised of two houses. If both are in session, congress is in session. If one is not in session then congress is not in session. The word is 'congress'. The Senate can gavel in and out all they want to, that only keeps recess appointments blocked, as only the Senate confirms appointments. But with the House in adjournment, then congress itself is not in session. It is not a difficult argument to make. For congress to be in session with only one house actually gaveled in, that would mean that congress is made up of one body, and it is not. As far as a court battle is concerned, that would seem to me to be what the Administration wants out of this fight, as they have to know congress is not going to take this sitting down, although keep in mind, congress controls the purse, while the administration spends it. All the administration has to do, is declare the bill dead (as they did) and then ignore it from there. It is back in the hands of 'congress' to do something about the challenge. Whether they will, shall show spine or no spine. So far, I'm not counting on seeing any of it anytime soon.

dustbunny44 wrote on January 3, 2008 10:16 AM:

Not sure of proper procedure, but am I correct in thinking that if the WH mucks this up so congress argues about it or sues or whatever, for weeks or months, they effectively get their way?

sb wrote on January 3, 2008 10:22 AM:

Congress must stay in session for the duration of the Bush Presidency. Period. What's so hard about staying in session and making sure that the President doesn't attempt to subvert the Constitution?

Stop raising money and taking vacations and WORK, dammit.

Steve5117 wrote on January 3, 2008 10:23 AM:

Why can't Congress just resubmit the bill, now that they're back in session?

donviti wrote on January 3, 2008 10:24 AM:

Now, it's possible that the White House just didn't think this one through.

LMAO

It is tough to tell isn't it? My guess is they did on this one though. god dam they are crafty bastards

JohnG wrote on January 3, 2008 10:28 AM:

Congress should (a) reapprove the bill by more than the two-thirds majority and (b) also pass a similar (but not identical) bill to take effect if, and only if, a court holds that the pocket veto stands. That way, the appropriations go through and the court will rule on the issue.

Also, the pocket veto is a historical anomoly - it goes back to the days when Congress met for only a few months each year and when it took weeks to travel to Washington by horse or stage coach.

Finally, the House has to follow the Senate lead and simply stay in session ... let the Maryland and Virginia delegations do their part!

John Dillinger wrote on January 3, 2008 10:29 AM:

Since this is an appropriations bill, won't the White House have to refuse to spend money to remain consistent? And how long can that lost before they have to shut down the government? In that event doesn't Congress hold the upper hand, by simply simply stating "we passed the bill, spend it."

Matt Weiner wrote on January 3, 2008 10:30 AM:

Why argue that they can override the veto? Why not say, we passed it, Bush didn't veto it properly within ten days, a bill that isn't vetoed in ten days is law? No givebacks, no need to override.

lgrooney wrote on January 3, 2008 10:31 AM:

More proof of D stupidity in not fighting the right-wing nuthouse crew now ensconced in the Judicial branch and in trying to continuously compromise with the latest version of the GOP. This WH from Day 1 has been seeking court battles over the power of the Presidency and every day that goes by with a new egregious performance without a challenge by the legislature sends us deeper into the precedence category. Added to that, with a judicial branch now much more inclined to grant a GOP executive nearly every desire for power imaginable under the mantle of the supremacy of majority rule and a twisted interpretation of what the Constitution actually says, the Ds have painted themselves into a corner on what levers they have available.

Gaines wrote on January 3, 2008 10:33 AM:

Nice try, ilitigant, but there is a stronger argument for the other side. A new Congress is convened every time regular elections are held and new members sworn in. Thus, we are in the 110th Congress and in January 2009, we will enter the 111th Congress. In order for a Congress to end, it must adjourn sine die. To do so, both chambers must pass a joint resolution agreeing to the date of adjournment. It takes the agreement of BOTH chambers to adjourn sine die. Recessing is related, parlimentary procedurally-speaking, to adjournment. The most logical conclusion is that Congress cannot recess unless BOTH chambers agree to do so and, until such time as they do, "Congress" as a unit remains in session. The drafters probably really only intended the pocket veto to apply to laws passed at the very end of a Congress so that the brand new Congress with new members would have to start over. Once the Congress adjourns sine die, there simply isn't any body competent to consider an override.

JohnJ wrote on January 3, 2008 10:36 AM:

This subject was discussed last week by Emptywheel last week.

http://emptywheel.firedoglake.com/2007/12/28/why-the-sudden-veto-of-military-pay-raises/

(hope that link works)
A commenter, PheonixWoman quotes case law:

"Wright v. United States (1938) explicitly states that if ONE house is in session, Congress is NOT, repeat, NOT in recess for the purposes of pocket veto:

The first question is whether ‘the Congress by their adjournment’ prevented the return of the bill by the President within the period of ten days allowed for that purpose.

‘The Congress’ did not adjourn. The Senate alone was in recess. The Constitution creates and defines ‘the Congress.’ It consists ‘of a Senate and House of Representatives.’ Article 1, 1. The Senate is not ‘the Congress.’ "

It is comment 25 on that thread. Read the rest.

Grumpy wrote on January 3, 2008 10:37 AM:

Notwithstanding ilitigant's definition of when Congress is in session, assuming Congress was in session, then not signing the bill means it automatically becomes law. There's no veto to override.

chabuka wrote on January 3, 2008 10:37 AM:

If you don't let Bush have his "pocket veto" he will "hold his breath until he turns blue" kick and scream, tell his parents on you, and it will all be those damn Democratics fault.....

AlladinsLamp wrote on January 3, 2008 10:37 AM:

Isn't there some House/Senate joint resolution issued before every recess which delimits the terms of the recess?

I remember hearing these read before every vacation/holiday recess.

What did that say?

PatrickW wrote on January 3, 2008 10:40 AM:

This country is lost if the next administration doesn't see that this administration is prosecuted for high crimes. South America here I come. One Tin Soldier Rides Away.

chabuka wrote on January 3, 2008 10:44 AM:

JohnJ

"Wright v. United States (1938) explicitly states that if ONE house is in session, Congress is NOT, repeat, NOT in recess for the purposes of pocket veto:

Then you contridict yourself by stating

‘The Congress’ did not adjourn. The Senate alone was in recess. The Constitution creates and defines ‘the Congress.’ It consists ‘of a Senate and House of Representatives.’ Article 1, 1. The Senate is not ‘the Congress.’ "

Huh?

cynical Jim wrote on January 3, 2008 10:45 AM:

Dearest ilitigant,

Your analysis is interesting. Do you have the legal education and experience necessary to put forth such as a legitimate legal opinion, or are you just spout Shrublican talking points?

Anonymous wrote on January 3, 2008 10:45 AM:

Alladin, I think that's the sine die reso Gaines was referring to, and I remember it similarly also.

Glen Tomkins wrote on January 3, 2008 10:45 AM:

Why would you get the courts involved in this dispute?

If the Congress has the 2/3 of both chambers needed to override a veto, why not just pass the bill again and then override whatever honest veto that results. Yes, it can take quite a good long time and much effort to shepherd a complex bill through the first time, but they could do a "pre-probated" bill like this in about three minutes per chamber. One chamber or another does this all the time with slightly amended versions of bills they get back from the other chamber.

Courts shouldn't give standing to parties that have adequate remedy in their own power. That allowing specious standing clogs up the court dockets is the least of my concerns. The big problem with letting the Congress run to hide in the skirts of the courts every time it should assert itself vis-a-vis the president but doesn't think it can, is the learned helplessness of Congress this fosters. The great thing about Congress accepting the Preznit's ridiculous assertion about the pocket veto on its face, is that having this DoD appropriation back in play gives Congress back its greatest disciplinary tool against a misbehaving president, the power of the purse. I wouldn't want some court agreeing with the Preznit's absurd contention, because that would set a binding precedent. But Congress can and should accept back the stick of maintaining the DoD on continuing resolutions indefnitely, right up to the minute this incumbent Preznit leaves the WH. It won't set a binding precedent, and, if they actually use the CR status as a stick to beat up on the Preznit, say by firing some of the his stooges and minions over at DoD, it won't set a precedent that any future president would care to follow.

Bob wrote on January 3, 2008 10:47 AM:

I am not sure Congress can be said to be in session when the House is adjourned. They may have something here. I agree that if Congress was in session then there was no veto and thus can be no override - if Congress was in session, it appears that the appropriations bill did in fact become law. If Congress was not in session, even though the Senate was, then the pocket veto was effective, and Congress ought to pass the law again and override the veto - but even a weakened Bush probably has the clout to rein in enough Republicans to prevent such a public rebuke, especially in a primary season in which the Republican candidates are falling over themselves to show who is most like their discredited incumbent. This may be the point of the maneuver - even Republicans who may have been willing to override (and there is no assurance they in fact would have done so, no matter how they voted initially) may think twice about voting TWICE to override the same veto.

Anonymous wrote on January 3, 2008 10:47 AM:

Those are actually very good points, Glen.

mcr wrote on January 3, 2008 10:48 AM:

simple.
rewrite the entire thing, add a couple commas, and one section declaring this president, Worst Ever.

Pass it by Veto Proof majority.

centerpunch wrote on January 3, 2008 10:49 AM:

Just ignore the WH and continue on with the agenda... The bill was passed by a veto-proof vote and therefore it stands as the will of the Congress. This could be bad for Bush if it is left in his hands to explain. I think this is a windfall for the Dems... just do nothing, you already know how to do that so well!

Let the Chimp dance around with this one--this could be great!

Anonymous wrote on January 3, 2008 10:49 AM:

Just from a spin perspective, assuming Congress overrides shrub, could they then at least begin to argue that they prevented the Admin from laying off civilian DoD employees?

Anonymous wrote on January 3, 2008 10:50 AM:

Not that they could actually make this argument EFFECTIVELY or anything...

eli wrote on January 3, 2008 10:53 AM:

What Steve5117 said. Take Smirk at his word. Once both houses are back in session, immediately reintroduce and reenact the identical bill. If Reid and Pelosi are on the ball (I know, I know...) it could be done in a matter of hours. Then Smirk'd have 10 days to drag his feet before surrendering. Or has the veto-proof majority disappeared over Xmas?

All Smirk wants out of this charade is an opportunity to tell the press that the Dems are stiffing the troops by engaging in a court fight instead of passing the bill Smirk wants. Don't give him what he wants. Give him a fresh copy of the veto-proof bill. Paper's cheap.

Yeah, the pocket veto's a historical anomaly... like most of the rest of the Constitution. But until we release version 2.0, this is hardly the most glaring flaw in the system. SmirkCo's just trying to run out the clock. Don't waste too much time litigating an ultimately trivial item like the pocket veto.

Chris Andersen wrote on January 3, 2008 10:56 AM:

Question: does the fact that the White House sent the bill back to the House not, in itself, make it an ordinary veto? I thought a pocket veto means that it is just dropped and nothing more is done with it. Sending it back to Congress implies a standard veto.

God, wouldn't it be great to have a President who doesn't govern by the most obscure of constitutional loopholes?

JohnJ wrote on January 3, 2008 10:56 AM:

to:chabuka wrote on January 3, 2008 10:44

I just grabbed part of the quote. It is not mine and it is several paragraphs longer. Please read the whole thing. The first paragraph I quoted is the leading comment by the poster, the next is the actual decision by the court.

Unfortunately, the text quoting didn't paste with proper quotes and indentation.

Please read the whole comment.

JohnG wrote on January 3, 2008 10:58 AM:

Remember that the WH basis for the pocket veto is the provision to allow suits against Iraq for Saddam's war crimes. The Bushies will put a full court press on to get this one provision stripped from the bill.

Bush says that allowing such suits would cost $$$ needed by Iraq, and it is a "new" government. If so, why does Bush insist that Iraq pay on the debts incurred by Saddam? Or is it just that one should honor their contracts, but not pay for violating human rights? Oh, of course!

mr.ed wrote on January 3, 2008 11:03 AM:

It's pretty clear that David Addington is the sharpest legal mind in this country, and is incredibly underpaid. He consistently beats up every lawyer in Congress at every turn. They should be ashamed that they can't muster the brainpower to contradict his pronouncements. Cheney and cohorts would have been toast years ago without him. He should get the medal next time. And a pardon for his treasonous behavior.

JohnJ wrote on January 3, 2008 11:04 AM:

Here is whole comment from "PhoenixWoman" (again the first paragraph is her leadin:

Wright v. United States (1938) explicitly states that if ONE house is in session, Congress is NOT, repeat, NOT in recess for the purposes of pocket veto:
------------------------------------------
The first question is whether ‘the Congress by their adjournment’ prevented the return of the bill by the President within the period of ten days allowed for that purpose.

‘The Congress’ did not adjourn. The Senate alone was in recess. The Constitution creates and defines ‘the Congress.’ It consists ‘of a Senate and House of Representatives.’ Article 1, 1. The Senate is not ‘the Congress.’

The context of the clause itself points the distinction. It speaks of the ‘House of Representatives’ and of the ‘Senate,’ respectively. It speaks of the return of the bill, if the President does not approve it, ‘to that House in which it shall have originated’; of reconsideration by ‘that House,’ and, in case two thirds of ‘that House’ agree to pass the bill, of sending it together with the President’s objections to the ‘other House’ and, if approved by two thirds of ‘that House,’ the bill is to become a law. Provision is made for the taking of the votes of ‘both Houses’ and for the recording of the names of those voting for and against the bill on the Journal ‘of each House respectively.’

Then, after this precise use of terms and careful differentiation, the concluding clause describes not an adjournment of either House as a separate body, or an adjournment of the House in which the bill shall have originated, but the adjournment of ‘the Congress.’ It cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appre- [302 U.S. 583, 588] ciate its plain significance. The reference to the Congress is manifestly to the entire legislative body consisting of both Houses. Nowhere in the Constitution are the words ‘the Congress’ used to describe a single House.
-------------------------------------------
My apologies if I broached any ethics copying the entire comment.

jolly ranchero wrote on January 3, 2008 11:04 AM:

I too am confused here. Either Congress was in session, and the bill--unsigned--is automatically law, OR it was in recess and pocket vetoed.

I cannot fathom how an argument can be made that they were in session, but the bill was vetoed, absent a formal veto. It's either already law, or already dead. Where's this grey area the Dems are pointing at?

Bob wrote on January 3, 2008 11:06 AM:

Chris, you may be right. The story says, "The White House argues it pocket-vetoed the defense bill on Dec. 28 by sending it back to the House with a message of disapproval." Sending a rejected law back to the Congress with a message of disapproval certainly sounds like a veto - not a pocket veto.

Here is the Constitution's description of the veto process (Art. 1, Sec 7):

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it."

Here is the same section's description of the pocket veto: "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."

What the story says the White House actually did appears to be a veto, plain and simple, and the Congress should override it. But don't depend on the Republican members to do so.

Freewheelin' Freddie wrote on January 3, 2008 11:09 AM:

Dana Perino (in reply to a gathering of irate peasants with pitchforks and torches) said "After consulting with White House attorneys, the President has decided not to step down simply because his term of office is over. The President feels he is on strong Constitutional ground here and would prefer to move on now, as there is lots of Hard Work© to accomplish in the new permanent term of office."

NMvoiceofreason wrote on January 3, 2008 11:22 AM:

JohnJ is correct. Wright v. United States 302 U.S. 583(1938) makes it very clear Nancy Pelosi is an idiot. Since once house of Congress was in session, Congress was in session AND THE BILL IS NOW ALREADY LAW. No need to vote, overturn the non-existent veto, etc. It is law. Sue to enforce it!

JohnJ wrote on January 3, 2008 11:22 AM:

To Mr.ED:
Just because Addington comes up legal arguments doesn't make him successful; you have to get the Courts to actually agree with your interpretation to be successful. Otherwise they are nothing more than opinions.

Since most of his crackpot opinions are kept SECRET until they are pried out by someone; they are just opinions. I am no Lawyer but I don't think even this joke of a SCOTUS would backup his logic if pressed.

Have you ever heard the legal arguments that some defense attorneys use? I don't classify most as legal geniuses.

Anonymous wrote on January 3, 2008 11:24 AM:

"Do we have our first contestant for the Bush Administration's dumbest legal arguments of 2008?"

Didn't take too long, did it?

Anonymous wrote on January 3, 2008 11:25 AM:

The administration continues to impede the workings of Congress. Their plan for 2008 is to pull these stunts until their time expires with the 2008 election.
The Democrats may need to listen to the B8ush Administration here and begin their own time wasting tactics. Lets see who will be screaming "delay, delay" when IMPEACHMENT procedings are brought to the floor. If you can't get legislation through get on with a trial.
It's way past time the Democrats start to function like they represent their constituents.

Bill from Dover wrote on January 3, 2008 11:26 AM:

"Do we have our first contestant for the Bush Administration's dumbest legal arguments of 2008?"

Didn't take very long.

Clavis wrote on January 3, 2008 11:26 AM:

You're all misunderstanding the scale of what's been going on the past 7 years.

The combined result of all these ridiculous extra-legal judgments, statements and (most importantly) actions in defiance of Congressional rules -- from ignoring subpoenae to making up veto rules -- is to demonstrate to all those who matter that the rules of government are insufficient to prevent fundamentally lawless behavior on the part of authoritarian oligarchs who put their private fealties before the good and Constitution law of the nation.

In other words, by this current pocket veto idiocy turning into another demonstration of the essential impotence of the legislative branch, Bush confirms the confidence of the rich and powerful that, with the right people in the right positions, they can act with impugnity no matter what they do.

ed wrote on January 3, 2008 11:30 AM:

I think the WH knew what they were getting into. They knew their reasoning was absurd and wouldn't hold up in court, but they also knew that the only way to resolve it is if the House forced the issue is to get into a long litigation process. Since this is a defense bill, they know that they can make political hay by accusing the dems of wasting time with lawyer's and courts and accuse them of being weak on defense, not caring about our troops, etc. It's a game of chicken they think they can win so that's why they pulled the trigger.

Dem's best way around this is to just pass the exact same bill again when we come back on the 15th and dare him to veto it. The issue is whether the white hosue can convince enough republicans in congress to uphold the veto.

NMvoiceofreason wrote on January 3, 2008 11:31 AM:

Bob says:
"What the story says the White House actually did appears to be a veto, plain and simple, and the Congress should override it. But don't depend on the Republican members to do so."

One problem, Bob. He didn't do it within the ten days that they were in session. Bush can object to a bill that became law all that he wants, but that doesn't change the fact IT IS ALREADY LAW.

Bush was trying to remove the blockade of his recess appointments, and it backfired on him. He deserves what he gets.

Pocket Pool wrote on January 3, 2008 11:38 AM:

Didn't get the veto right 'cause his hands were busy with other things....

Rogermac wrote on January 3, 2008 11:39 AM:

Given the administration's history of tap-dancing at the margins of the constitution, it is exasperating that this pocket-veto ploy to run the clock was not foreseen and checked by keeping the House also in pro-forma session.

theswan wrote on January 3, 2008 11:40 AM:

Can't get legislation through due to the planned delay tactics of the 2008 administration? If their agenda is to stall our goverment for the next 11 months the Democrats need to take notice. To fill in that valuable time they need to bring IMPEACHMENT procedings to the floor of the house. At least THE PEOPLE will get an educational benefit of how our goverment should work when it is being subverted by a gang of thugs.
Don't delay! Impeach Now!

gtash wrote on January 3, 2008 11:44 AM:

Well said Clavis.

Steph wrote on January 3, 2008 11:54 AM:

Does anyone have the link to the Hill article referenced in the post? I'd like to read what the Library of Congress Constitutional scholar had to say, but couldn't find it on on The Hill website.

ineedalife wrote on January 3, 2008 12:06 PM:

Bush desperately wants to avoid an override vote because a bunch of Republicans will be put to the Kerry test: "I voted for it before I voted against it!" Hoisted on their own petard. The campaign commercials will write themselves. I am sure he will back down if the Dems stand firm. I am sure they can think of other ways to scuttle Iraqi lawsuits.

Constitutius wrote on January 3, 2008 12:06 PM:

The bill was returned to the House with the objections of the President. Pelosi can choose to consider this a veto.

This is probably the smarter choice as declaring the bill to be law risks a reversal in the courts which would be painted as a victory for the administration and an endorsement of their position.

Bush clearly intended to veto the bill, the argument is whether it is an explicit veto or a pocket veto. The constitution does not state the form in which a veto is expressed, that is merely custom.

Neither Bush, nor the courts nor the Republicans in the House can now stop Pelosi holding an override vote. Pelosi is far more interested putting the GOP house members up for re-election on the spot than President Doofus. Same holds in the Senate.

If the override succeeds the Dems win, Bush has little option but to accept that the bill has been passed. If they try to resist Pelosi and Reid can refuse to have a do-over. Bush would only make himself look increasingly stupid if he tried to resist. Nor is it likely that the courts would intervene as the will of Congress has been demonstrated and they cannot question proceedings in either house.

If the override fails the Dems win. The GOP has shown its obstructionist colors. The Democrats introduce a new bill that is less acceptable to the administration.

The irony here is that Bush could probably have got what he wanted by simply asking. It is highly unlikely that the drafting was intended to have the effect it did, it was just a defect in the legislation discovered too late. Congress fixes that sort of stuff all the time.

But instead they had to prove a point and so now they are facing a major consitutional crisis which they can't win regardless of which way the vote goes.

The courts are unlikely to intervene. If they are forced to they will look to the intent of the parties, not the technicality. Bush clearly intended a veto. If Congress succeeds with an override the bill will stand as law. The courts are not going to get into arguments on proceedure in either case.

peachkfc wrote on January 3, 2008 12:13 PM:

RE: what JohnJ wrote on January 3, 2008 11:04 AM: “Here is whole comment from "PhoenixWoman" (again the first paragraph is her leadin:),” and what may be some continuing confusion--the first paragraph of PhoenixWoman's comment is NOT "her leadin," it is a quote from the Supreme Court's decision in Wright v. United States. In the 1938 scenario, it was the Senate that had gone into recess, leaving the House in session, as opposed to the situation we have at present where the House went into recess and the Senate stayed in session.

Other than this minor, and, to my mind, irrelevant difference in the facts, it seems to me that the Wright case is dispositive and that Bush and company are full of shit. I don't think Pelosi is being an idiot about this, I just think that that her staff probably has not done their homework on the law. (Not that there's any good excuse for that.) I agree with the suggestion that Pelosi and Reid should take the position that since didn't formally veto the bill, it is now law. (BTW, to answer another question I saw above that I'm not sure has been answered yet, Bush returning the bill to the House with a message saying he wasn't going to sign it does not qualify as an actual veto; to veto a bill, the Pres has to sign a formal statement that says, essentially, "I hereby veto this bill.") When the Administration refuses to spend the money or otherwise comply with the law, Congress should sue to enforce it. If Congress starts over or or anything like that, it will be de facto accepting the Administration's argument, which is unacceptable for a host of reasons.

moondancer wrote on January 3, 2008 12:18 PM:

Bushco was fine with the bill until they noticed an innocent line about oversight. I don't know why they worried since they've been lawless for their entire term. But at the eleventh hour he decided he couldn't live with it.
I would take it to court. Gooper congress is going to abandon a veto override, and if this is a maneuver by the chimp, its a great place to toss him a loss.

Matt wrote on January 3, 2008 12:24 PM:

"The eight year Constitutional law seminar that is the Bush Administration..."

Now that is some masterful framing. Here I am thinking he's the worst president ever, when in fact he's history's most innovative civics teacher! Nicely done, on several levels.

sailmaker wrote on January 3, 2008 12:30 PM:

I am going out on limb here, perhaps the 'unusual' format of the veto was actually to court test the pro forma sessions in the Senate? With an eye to court blessed ridding the Executive Branch of the dodge that does not let them recess appoint more conservative judges? Along with creating an opportunity for smearing the Dems, of course. Sounds like Addington heaven to me.

Anonymous wrote on January 3, 2008 12:32 PM:

NM says

"One problem, Bob. He didn't do it within the ten days that they were in session. Bush can object to a bill that became law all that he wants, but that doesn't change the fact IT IS ALREADY LAW."

Agreed that if the bill became law then it is still law and there can be no override because there was no veto.

But if the Congress was not adjourned, as the Wright case suggests, then didn't the White House return the rejected bill, along with its reasons for rejecting it, to the House within the ten days? Am I misreading the time line?

It seems a kind of fancy footwork to say, if indeed anyone is saying this, that the House's not being in session could prevent the return of a veto on the one hand, and the Senate's being in session could at the same time prevent a pocket veto of the same purportedly rejected bill.

Glen Tomkins wrote on January 3, 2008 12:34 PM:

Why sue to enforce it?

NMvoice of reason,

Fine, Congress considers the appropriation law because the President failed to return it with his veto in time, so it's law without his signature.

The absolute best result would be for Congress to accept the veto, and use the opportunity to fund the DoD by continuing resolution for the rest of Dubya's term in office (I don't think that they should have let any of the appropriations bills out of CR purgatory, so that they could hold the power of the purse over him indefinitely.). But, they didn't use the power of the purse before they stupidly turned the appropriations CRs into law, so they probably wouldn't now, so this "best" outcome is the worst enemy of the realistic good outcomes.

So, let Congress follow your plan of considering the bill to now be law. But they absolutely should not sue the President over the matter. Let him consider there to be no appropriation for DoD, and now no CR either, and let him shut down the DoD, including Iraq, over this bizarro-land interpretation of the Constitution. That plan won't last a news cycle before he backs down with his tail between his legs. But if Congress sues, he can blame the shut-down on Congress's litigiousness, and Congress will back down with its tail between its legs.

RandyBastard wrote on January 3, 2008 12:38 PM:

There is a difference between 'adjournment' and 'recess.'

Adjournment occurs when congress goes out of session at the end of its TWO YEAR run. Recess occurs when they take a break DURING the two years of a numbered congress (the 110th is the current congress).

The constitution says 'adjournment', not 'recess.'

HOWEVER... (and this is very important) if Bushco succeeds in this effort to blur the lines between adjournment and recess, and change the meaning of Article 1 section 7, then we need to revisit the Military Commissions Act of 2006.

Why, you ask? Because congress was in a genuine recess at the time and Bush did not sign it for a total of 18 days.

So, if he gets his way this time, then the Military Commissions act is null and void. Bush would have signed that bill after the pocket veto was effected.

workaday joe wrote on January 3, 2008 12:38 PM:

Ya know, wtf is wrong with the Democats. If they thought this could happen, it only makes sense to keep the House in session too. If anything seems improvised it's the way Reid and Pelosi have been running things. Once again, no strategy from tweedle dee and tweedle dum. How many times does this have to happen?

peachkfc wrote on January 3, 2008 12:39 PM:

Constitutius wrote on January 3, 2008 12:06 PM:
"The bill was returned to the House with the objections of the President. Pelosi can choose to consider this a veto.

This is probably the smarter choice as declaring the bill to be law risks a reversal in the courts which would be painted as a victory for the administration and an endorsement of their position.

Bush clearly intended to veto the bill, the argument is whether it is an explicit veto or a pocket veto. The constitution does not state the form in which a veto is expressed, that is merely custom."

That's true, the Constitution does not state what form an actual veto must take, but I think that the general requirement of more explicit language from the President than a note saying he doesn't like the bill for whatever reason is more than merely custom. In the Wright decision, the Supreme Court pointed out that the President had returned the bill in question to the Congress with a statement of his objections, but the Court did not consider that this constituted an actual veto. Since Bush did exactly the same thing in this case that the President did in Wright, it cannot be considered a veto under the law, and I don't think Pelosi or anybody else can just "choose to consider" it as such. Also, I haven't done my own research on the timing, but it is my understanding that Bush missed the ten-day veto deadline that is explicitly in the Constitution. If that is correct, then whatever Bush's statement about the bill said, and even if he had intended to formally veto it, he could not have done so.

You may be right that the courts won't want to intervene, but that's no reason for Pelosi, et. al. to not do the right thing here, for once. The Federal judiciary certainly does not generally get involved in political disputes or in deciding matters that involve only internal Congressional or Executive Branch procedures. However, this dispute involves clear-cut issues of Constitutional law, not arcane political customs.

peachkfc wrote on January 3, 2008 12:53 PM:

Glen Tomkins wrote on January 3, 2008 12:34 PM: . . . "let Congress follow your plan of considering the bill to now be law. But they absolutely should not sue the President over the matter. Let him consider there to be no appropriation for DoD, and now no CR either, and let him shut down the DoD, including Iraq, over this bizarro-land interpretation of the Constitution. That plan won't last a news cycle before he backs down with his tail between his legs. But if Congress sues, he can blame the shut-down on Congress's litigiousness, and Congress will back down with its tail between its legs."

I didn't elaborate on my whole (fanatsy) litigation strategy, but what I meant was, if the President decides to proceed with an idiotic plan of shutting down the DoD, etc., at that point, it might be necessary for Congress or somebody else with standing to head to the courts, and I think that would be the right course of action. Nobody ever challenges this Administration on its illegal acts or bizarre "interpretations" of the Constitution and and way past time that to do so. Considering that this scenario presents what I think is a winner for the Democrats both politically and legally, I think they should finally draw the line right here.

And FWIW, I agree with sailmaker and others that it is very likely that the real reason for this bs is an Cheney/Addington-led plan to challenge the Senate pro forma sessions because they are so peeved that they can't make their beloved recess appointments.

gauche wrote on January 3, 2008 12:58 PM:

Just to clear up a question that might've fallen through the cracks.

jolly ranchero wrote:

"I too am confused here. Either Congress was in session, and the bill -- unsigned -- is automatically law, OR it was in recess and pocket vetoed.... It's either already law, or already dead. Where's this grey area the Dems are pointing at?"

Good question! The grey area is as follows, as far as I can tell. The pocket veto is outlined in the Constitution under a particular circumstance, when the Congress has adjourned during the period of time in which the President is expected to veto, sign, or ignore the bill in question. The grey area in question is this: is a pocket veto available to the White House when only one house has adjourned?

In order to answer this question, we look at the text describing the conditions of the pocket veto. If the condition were something like, "unless Congress, by failure to be in session, shall prevent [the bill's] return" then Ilitigant's interpretation above is correct: the pocket veto is available to the White House when the Congress, (the whole Congress: both bodies) is not in session. One body is not Congress, and Congress must not fail to be in session.

However, the text reads, "unless the Congress by their Adjournment prevent its Return", which suggests that the test is not so much "Is Congress (the whole Congress: both houses) in session?" as it is "Is Congress (the whole Congress: both houses) in adjournment?"

This view of the pocket veto is supported by the Supreme Court in Wright v. United States, as noted by JohnJ above. It makes clear (to me at least) that Bob's comment at 10:47 ("I am not sure Congress can be said to be in session when the House is adjourned.") is not the correct test to apply in this case.

It seems to me that the stronger textual argument could be made that the use of the plural, rather than singular, pronoun is evidence that the test is intended to be disjunctive, rather than conjunctive, of the Congress as a whole, but I suspect (and am not an expert in these matters) that this has never been understood to be the case, given that the pocket veto is a historical rarity. (A or B being a lot more likely than A & B).

Zedtard wrote on January 3, 2008 12:59 PM:

Hmm, sounds to me like the bill is now law. If it isn't pocket vetoable, then he either signs or vetoes it, which he didn't, which would mean it becomes law by default. So no need to override anything, nothing's been vetoed. Lickspittles.

DryHeat wrote on January 3, 2008 1:10 PM:

Like some others here, I originally thought that the bill had become law because (1) the veto message was late as the bill was enacted and, I thought, sent to the President on 12/14/2007, and (2) the Senate was in session the whole time and thus under the Wright case Congress was not adjourned and no pocket veto could occur.

I still think number 2 is correct -- there was no pocket veto. But I was wrong about number 1. The bill was actually sent to the President on 12/19 and the veto message was returned to Congress on 12/28, within the 10 day period. The message of disapproval contained the following language which is certainly clear enough to constitute a veto:

"... I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed. "

The result is that there was a regular veto -- not a pocket veto -- and the Congress can override it if the votes are there.

Bob wrote on January 3, 2008 1:12 PM:

Gauche writes -

"...Bob's comment at 10:47 ("I am not sure Congress can be said to be in session when the House is adjourned.") is not the correct test to apply in this case.

It seems to me that the stronger textual argument could be made that the use of the plural, rather than singular, pronoun is evidence that the test is intended to be disjunctive, rather than conjunctive, of the Congress as a whole..."

Yes, it looks as if I did not get the test right. As to the punctuation, I think your analysis depends on current punctuation rules that did not apply at the time of the founding.

johnd wrote on January 3, 2008 1:17 PM:

I think the Dems should do the following:

Don't breathe a word about the courts. Bush hasn't mentioned the courts, neither should Democrats

Go wall to wall in the press. Every Democratic legislator's spokesperson should calmly tell the public that the bill is law under the constitution as far as this congress is concerned, so the President should stop obstructing, give up on his conjured up technical challenge and agree with 66% of Congress to getting our troops their much needed funding. America wants a President that doesn't weasel a way to veto a "veto-proof" bill for heaven's sake!

What's your pleasure Mr Bush a bill that 66% of the citizens representatives agree with or cutting the troops funding? It's already law, you just need to quit whining about getting your way.

DryHeat wrote on January 3, 2008 1:19 PM:

peachkfc said:

"In the Wright decision, the Supreme Court pointed out that the President had returned the bill in question to the Congress with a statement of his objections, but the Court did not consider that this constituted an actual veto. Since Bush did exactly the same thing in this case that the President did in Wright, it cannot be considered a veto under the law..."

This is a misreading -- actually, a reversed reading -- of the Wright decision. The President (in Wright) did do the same thing as Bush did here, but the Supreme Court held that it WAS a veto. Here's the language of the Court:

"On May 5, 1936, the President returned the bill with a message addressed to the Senate setting forth his objections. The bill and message were delivered to the Secretary of the Senate.
...
In this instance the bill was properly returned by the President, it was open to reconsideration in Congress, and it did NOT become a law." (emphasis added)

MW wrote on January 3, 2008 1:20 PM:

Apparently some people still think they're playing by the same rules as everyone else.

Has ANYONE been paying attention?

Invoke the mystical spirit "democracy", chant the sacred words, "no one is above the law", kneel before the Church of Broder and repeat the ritual liturgy, "they can't do that", treasure your pocket version of the revealed scripture "Constitution", and pray to the benign spirits of the Founding Fathers to show us the way in these dark times ...

But never call Bush a Fascist. Never consider the evidence. Never wonder about their undeclared intentions. And never call for their removal from office.

Console yourselves with the certainty that they will voluntarily relinquish power on some magical date in January of 2009.

JC wrote on January 3, 2008 1:23 PM:

Possible arguments:

Good faith: With the house adjourned, but the Senate not, it was ambigous whether the President could "return" the bill (for possible override of a normal veto). So the Prez sez: I don't approve, and this is a pocket veto.

Variation: This could be a regular veto ("I don't approve" satisfies the plain meaning of the Constitution language) or it may be a pocket veto (because with the House adjourned, the Prez could not return the bill to the House adjourned. Either way, it's a veto, which leaves unclear whether Congress can override (regular veto) or must repass (pocket veto.

Bad faith: the Prez takes advantage of the ambiguity either to mess with Congress' minds (he's a jerk) or to claim Congress is in "recess" which allows him to make recess appointments (he's an awful jerk). Ignore whether the test of whether Congress is adjourned for purposes of pocket veto is the same as the test for whether Congress is in recess for purposes of recess appointments, which only the Courts can sort out (but never have, because it's never come up exactly like this).

Take your pick.

eric wrote on January 3, 2008 1:25 PM:

In my courtroom, this bill is now law. This is true for at least two reasons, although only one of these is sufficient.

First, as mentioned above, a pocket veto is only possible at the end of a congressional session - after adjournment. Recesses don't count.

Second, even if recesses did count, the Congress wasn't even in recess because the Senate was in session. I see that "ilitigant" above argues that both houses need to be in session for Congress to be "in session", but one could just as easily argue that a recess isn't effective until both houses are "in recess".

Michael Stevens wrote on January 3, 2008 1:27 PM:

My guess, it's a trap.

We give Bush far too much credit to suggest he's doing this in order to expand the unitary executive, or to gut the Congress's ability to hold pro-forma sessions or any other big picture reason. I believe he's doing this for a short term gain. And if we make a big deal out of this, we fall right into Bush's stupid trap.

How is it a trap? I believe Bush is pissed that the momentary upswing in Iraq is getting so little media attention. I believe he's equally pissed that the Congress passed his half trillion dollar war funding bill during the holiday media-blackout. I'll bet fewer than 1 in 5 American's even knew it passed. So Bush is having this tantrum in order to bring his war more attention and further demean Congressional Democrats for their continuing support of war funding.

But the trap goes further, because I think Bush WANTS to see this in the courts. Just think, Democrats fighting in court In Favor Of a half trillion dollar Iraq war funding bill... The lower courts would each punt on this, it would go all the way to the Supreme Court.

Bush's tantrum has already guaranteed the war funding bill at least one more day in the media spotlight. But if we fall into his trap and let this get to the courts, his war will get a whole lot more attention.

If this is his plan, Bush would actually Want the Republican legislators to override his veto. Because if his veto holds, the bill and this entire "pocket veto" issue would die a sudden death. Meaning there could be no court case.

In order to ignore Bush's tantrum. Pelosi and Reid must continue with their plan to hold the over-ride sessions. At the same time, they need to make sure that enough Democrats vote AGAINST the over-ride (ostensibly "with" the President) to ensure the bill's defeat. The instant the over-ride fails, the bill will die and the entire "pocket veto" issue will die with it.

Sure, we'll have to pass the bill again, but that's far less of a problem that this court case Bush wants. We should hold the over-ride session tonight. Where it will be completely covered by Iowa. Then a new bill, sans the President's made-up reason for the veto, should be rushed through next Tuesday evening. The night of the New Hampshire primaries.

Bush is a child having a tantrum. If we treat him as such by ignoring his wails, we can easily beat him. But if we scream right back at him, we only stand to lose.

johnd wrote on January 3, 2008 1:41 PM:

MS says:

We give Bush far too much credit

and:

"If this is his plan, Bush would actually Want the Republican legislators to override his veto"

And lots of other speculative "what Bush is thinking" narrating.

I think Mike's Bush assesment in the first line contrdicts much of his post - which gives him credit

Snarkilicious wrote on January 3, 2008 1:46 PM:

If DryHeat's timeline and quotation of the "memo of objections" are correct, then it seems completely clear that it's a regular veto.

No need for going to the courts, or making arguments about "it's already law!", just get on with the override.

Now, if overridden, and Bush refuses to accept the override (because the whole bill should have been passed again from the beginning, as is the case for a pocket veto) THEN is the time to see about getting courts involved.

Or better yet, ITMFA.

Anonymous wrote on January 3, 2008 1:47 PM:

There are several complications here, most of which have established ConLaw answers.

Wright v. United States makes it very clear that the recess of the House does not affect the in-session status of Congress as a whole, due to the pro forma Senate sessions. To alter this would require SCOTUS to break with established case law--admittedly something the Roberts court does with abandon--but it would have to get there first. So, at this moment, this could not have been a pocket veto.

But Bush also sent the bill back to the House with objections (where it was received by a delegated officer). That's a veto. All the blogosphere chatter about how it isn't signed like a veto, or in the form of a veto doesn't matter. The Constitution is not proscriptive on these grounds. He had it. It went back. That is all that is required for a veto.

This whole nonsense is actually a cunning trap. Bush said he performed a pocket veto, but he didn't. He actually performed a real veto. The Constitution judges the fates of bills by Presidential action, not words. In short, he's not required to be truthful about what he did. And he benefits (in Bushworld, anyway) from any of the 3 possible outcomes.

If the Congress pretends that he really did pocket veto, and starts the bill over, he wins big. Because that establishes that pro forma sessions do not prevent a pocket veto, which means they also do not prevent a recess appointment. Bush will then arrange for a recess appointment (maybe even on just a weekend break) and, when contested, push it to SCOTUS. The Roberts court will overturn Wright, citing Congress's own determination to expand the scope of recess (sadly, that would even be almost the right ruling...). This would permanently remove the role of Congress for appointments. Period.

If Congress closes its eyes and pretends the bill is law, Bush wins. Its not law due to the actual veto, and so he would just not implement it, blaming the Democrats for shutting down funding. Eventually, someone might take the issue to SCOTUS where it would be confirmed that, yes, the bill was vetoed according to the Constitutional guidelines.

If Congress pushes for override, Bush still wins. For one thing, despite the huge margins on this bill, he probably suspects that Congress won't actually have the fortitude to override a veto. If they don't (or don't try), then there's no law in force, and he blames the Democrats, again, for failure to fund. If they really do override the veto, then, hey, great, they get what they want ... and he spins that they wasted a bunch of government time and money overriding his veto of "costly earmarks". Besides, that's time they didn't get to spend debating other, useful legislation.

Like impeachment.

judyo wrote on January 3, 2008 1:52 PM:

Of course they want it in court. These are Bush flunkies both Federal and Supreme.

johnd wrote on January 3, 2008 1:58 PM:

I say no late night sessions of congress to overide vetos of veto-proof bills. Bush has asserted a pocket veto of a bill that is veto proof, he's done it on a technicality. Democrats have two very good choices in my opinion so they can roll them up into the same position.

Your pocket veto has no merit.

It is obstructing the funding of our troops.

Do your job Mr Bush, enact legislation that is the will of the people.

Michael Stevens wrote on January 3, 2008 2:01 PM:

@ Johnd

I think you mis-read my intent. Last week I saw a lot of suggestions that Bush was doing this in order to make real change. That his agenda was to alter the meaning of Congressional recesses or to grab even more power to satisfy his goal of a unitary executive.

In my mind, each of those suggestions gives Bush Far too much credit. I don't believe his reasons for doing this are nearly so far thinking or elevated.

But just because the entire rational behind this petty game is to satisfy Bush's near-term agenda, doesn't mean the ploy can't be complex.

In any event, it's really not that complex. I agree it looks complex to outside observers, but to those on Capital Hill, I expect the transparency of this was evident from the start. Tactical voting for procedural reasons, even when seemingly at odds with your other votes, is a common occurrence on the hill.

Zipper wrote on January 3, 2008 2:06 PM:

Please, Oh, Please. This is driving me nuts.
Congress is make up of two houses. The House of Representitives and the Senate. It has become fashionable to call a member of the House a Congressman which is correct. But if you call a Senator a Congressman, you are corrected. A Senator is a member of Congress and thus a Congressman.
I first noticed this on C-SPAN and now it is everywhere. If someone called a Senator, a Congressman, they were told, "Oh no, you just said they were a Congressman and they are not. They are a Senator".
I know I babble, but I am 70 years old and I want to cry when I see our Constiturion being mis-represented.
Please, whenever and where ever you can, correct this. Our Congress is two houses.

NrothgalOfTheNorth wrote on January 3, 2008 2:07 PM:

There's the forest, and there are trees. You are all looking at a tree that fits into your "Bush vs. Congress" concept, rather than looking at a Defense Authorization Bill that is a travesty of responsible government. Why does the U.S. need to spend more money on a military establishment than ALL THE OTHER COUNTRIES IN THE WORLD PUT TOGETHER? Just because Congress passed it with a veto-proof majority does not mean any sensible person should want it implemented.

The Bush administration is only a symptom, not the disease.

Michael Stevens wrote on January 3, 2008 2:14 PM:

anonymous wrote:

This whole nonsense is actually a cunning trap...
If the Congress pretends that he really did pocket veto, and starts the bill over, he wins big...
If Congress closes its eyes and pretends the bill is law, Bush wins...
If Congress pushes for override, Bush still wins...

On the first points you're correct, but you fail to see the way out. There IS a way we can win this game.

Pelosi should treat this EXACTLY like a regular veto. As you point out, simply sending objections to the Congress is the Constitutional description of a real, true (non-pocket) veto. Bush Did send his objections.

To treat this like an ordinary veto, Pelosi should hold the over-ride session. She should also make damned sure the veto is NOT over-ridden. She and Reid should then quickly pass a new bill without Bush's raison d'etre for the veto.

The very instant that the veto is not over-riden, the bill dies. When the bill dies, the claimed pocket veto dies and so does any and all hope of a court case.

We win!

Well, perhaps a more proper description is that Bush doesn't win and we don't lose.

We don't lose!

kevo wrote on January 3, 2008 2:18 PM:

I've attempted to remain restrained over the past 7 years, but this "pocket veto" thing is just one more example of how Fucked Up Mr. Bush and his Team Texas are. I hate to interject profanity on any thread, but come on, these guys are totally repulsive to our bodypolitik and its heritage.

Instead of expanding democracy as every generation before it, this WH crowd has, seemingly on many fronts, worked to undermine any reasonable expansion of civil liberties and rights, let alone any reasonable and continuing engagement with the other two federal institutions sharing power in Washington.

Now we witness Mr. Bush gerrymandering the Constitution blindly to get his way. Yes, this will surely end up in the courts before it is over, and to think, the legislation in question is the one that fully funds his precious Iraq occupation force. -Kevo

Anonymous wrote on January 3, 2008 2:28 PM:

Lots of good arguments here. Apparently, having appropriated legislative powers through signing statements, the administration now wishes to appropriate judicial branch responsibilities, too. The solution is simple. Congress does not have to sue to force the administration to obey the law they passed. They should just declare that Bush's reasoning is bunk and go on about their business. They hold all the cards. If Bush refuses to spend the money, let him try to figure out what to do about it.

johnd wrote on January 3, 2008 2:49 PM:

"If the Congress pretends that he really did pocket veto, and starts the bill over, he wins big." "If Congress closes its eyes and pretends the bill is law, Bush wins.""If Congress pushes for override, Bush still wins."

Anonymous, please get it over with and become a Republican already. when you say "and so he would just not implement it", do you realize that the President doesn't "implement" legislation, but rather he merely signs it into law? The United States of America and it's elected and professional civil servants implement legislation.

Just the same, you are indeed correct that Bush's spurious claim of "pocket veto" will prevent the legislation's implementation. What I can't understand is how we've all turned into such cynical cowards.

This is a case where Bush stood up to to his opponents and said, "the troops need money desparatley but my principles (however misguided or devious) prevent me from even allowing the established process of a congressional override play out and I am asserting a "pocket veto."

Is that really a challenge we aren't up to? Bush is the one loudly criticizing everyone one for blocking funds, but calmly asserts an unchallengeable block to a wildly popular bill. Remember by Bushes own claims, further delay in a defense appropriations bill damages our readiness, troop strength, security, etc.

Democrats are Americans, many of our Representatives compromised to get this bill to his desk, he friggin' pockets it on the sly and tries to call Democrats obstructionist? I say calmly assert the bill is law and ignore the whiny bastard saying Democrats by not passing ANOTHER law are keeping the money from the war.

Lots of us don't want the money going to the war anyway, he's got a standing offer: drop his spurious pocket veto claim and agree the bill is law. Congress wants the bill passed, Bush never claimed he vetoed it outright, so Congress is not compelled to find that his gyrations may have been something he himself says it wasn't: a regular veto. He didn't sign it, he didn't veto it - it's supposed to be law, quit your obstruction and get the troops their money.

GK wrote on January 3, 2008 3:24 PM:

Dry Heat (on 1-3 at 1:10 pm) is correct. The president sent the bill back to the House with his objections. This is a garden variety veto, not a pocket veto. In order to override the veto, both houses must pass the bill with a 2/3rds majority, or change it slightly and resubmit it based on a simple majority. However, the president has put military funding back in play, and it remains to be seen what the upshot will be. However, recent events suggest that the Democratic leadership in the Congress will not be capable of exploiting the veto, moving the Democratic agenda (whatever THAT is) forward, or even getting the message out as to what actually has happened.

On the technical issues here's what Wikipedia says about a veto:

"The word "veto" [Lat. "I forbid it"]does not appear in the United States Constitution. Per U.S. Const., Article I, Section 7 all legislation passed by both houses of Congress must be presented to the President. This presentation is in the President's capacity as head of state.

"If the President approves of the legislation, he signs it. If he does not approve, he must return the bill, unsigned, within ten days (excluding Sundays) to the house of the United States Congress in which it originated. The President is constitutionally required to state his objections to the legislation in writing, and the Congress is constitutionally required to consider them, and to reconsider the legislation.

"If the Congress overrides the veto by a two-thirds majority in each house, it becomes law without the President's signature. Otherwise, the bill fails to become law unless it is presented to the President again and he chooses to sign it.

"A bill can also become law without the President's signature if, after it is presented to him, he simply fails to sign it within the ten days noted. If there are fewer than ten days left in the session before Congress adjourns, and if Congress does so adjourn before the ten days have expired in which the President might sign the bill, then the bill fails to become law. This procedure, when used as a formal device, is called a pocket veto.

Here;s the operative language from Article One, Section 7:

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively.

Here's the language regarding bills the president does not sign, and pocket vetos;

"If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

All this makes discussion of the pocket veto and Wright v. US moot. As we know, there's not a snowball's chance that Congress will override the veto, so now it's time for Pelosi and Reid to get busy, and get the message out.

nascardaughter wrote on January 3, 2008 3:30 PM:

I really appreciated the analysis of Anonymous (January 3, 2008 1:47 PM).

The flip side of this, though, is that with pro forma sessions, the Senate is effectively claiming to be able to remove a president's ability to make recess appointments and to use pocket vetos. Is that what we want going forward? Maybe...

Anonymous wrote on January 3, 2008 3:33 PM:

Michael Stevens presents what is actually probably the best course of action. By holding an override vote, but failing to override, the attempted expansion of pocket veto power fails. There is no standing to challenge Wright at SCOTUS, and really no reason the Roberts court will hear any part of the case. Also, it lets Congress re-draft a less reprehensible version of the bill (after all, Bush vetoed the one with the substantive war expenditure...). This requires, however, that Congress actually pass a replacement bill in timely fashion.

On the other hand, johnd-- who seems to prefer that anyone he finds cynical go join the Other Side. The executive branch implements laws. In addition to "merely sign[ing] it into law", the President, as executive, determines the precise manner and method by which laws will be executed (hence the name, actually). In the case of appropriations bills, this is especially true. Congress may earmark funds to specific purposes, but most allocations are departmental-level, and it is the task of the executive branch, through policies, departmental rules, signing statements (this is what they used to be for...) and executive orders, to perform the actual implementation. In the scenario with which johnd finds fault (Congress claims something is law, but the President disagrees), all that would be necessary to prevent its implementation is for the President to issue an Executive Order to that effect, prohibiting members of the executive branch from doing whatever the law would have otherwise empowered them to do. There is even precedent for this sort of order, even pre-Bush II. In such cases, either one side folds or it winds up at SCOTUS (if they take it). Likewise, johnd's assertion that "he didn't veto it" and the bill is de jure in force as law is dangerously naive. The President met the bare ConLaw requirements to veto, irrespective of what he said or what else he did; the bill was thus (non-pocket) vetoed. There is no ConLaw obligation to play nice, to be honest or forthright, except that contained within the oath of office.

Alain Zola wrote on January 3, 2008 3:46 PM:

This administration is convoluted in irrepressible laughter at your legal, ethical or constitutional preoccupations.

If, after seven years of the decider puppet, you still have not figured out that your so-called democracy has already preceded your derivative economy on its way down the proverbial tubes, you are past dumb and way into delusional.

Ciao

Adam C. wrote on January 3, 2008 5:15 PM:

Not a ConLaw lawyer here...but I remember reading the text of Bush's new years eve statement somewhere, and it was some kind of 2-pronged thing that said, in effect, "uhh, this is a pocket veto, but if this little charade fails to convince then please note I've already handled it like a regular veto" (ie., returned to House with objections). That does seem to anticipate the 'no pocket veto for you, and therefore it's now law' thing people have been floating.

The original vote may well have been "veto proof in both houses"--but with capital-O Obstruction being the sole mandate of the congressional GOP, it seems pretty likely they'll flip to stand behind Bush come override time, saying loudly the bill needs only minor changes and why won't the dems cooperate instead of grandstanding with an override attempt?

Bush will drawl on about the need for bipartisanship and compromise and git-'er-done support-thuh-Troops-there's-a-WAR-on! responsibility until the Dems cave and agree to screw over the Gulf War I POWs and others whose legal claims against Iraqi assets are the focus of all the last-minute WH flipfloppery.

The Dems might elect to skip the bad theater of another failed attempt to defy The Decider. Might get interesting, though, if Pelosi & co. take advantage of the "do-over" to attach a few new riders of their own (in addition to the WH-sponsored 'fix'), and dare the GOP to stand in the way a second time...

Daniel wrote on January 3, 2008 5:42 PM:

CRS has an excellent report that explores the history of the pocket veto. I've linked to the report and summarized some of the relevant cases here:
http://www.acsblog.org/news-and-announcements-the-pocket-veto-and-the-constitution.html

It addresses many of the points raised above. I hope this is helpful.

Doug wrote on January 3, 2008 5:43 PM:

The Democratic leadership should simply ignore GWB's letter. He failed to return the legislation in the time allotted by the Constitution and therefore the legislation is law. If anyone is to go to court, let GWB be the one. As for the media, when the VSP puppets start whining, refer them to the Constitution - it's time they learned about it anyway.
This is simply another attempt by the mal-administration to expand the "unitary" executive. If Pelosi and Reid treat this action as a "veto", then the precedent has been set to claim in court that if one House of Congress is in recess, then both are. And the attempts to block "recess appointments" by having the Senate hold pro forma sessions will fail.
That is what this is all about.

Dreamer wrote on January 3, 2008 6:05 PM:

A couple of points, first Wright v. US established that the necessary condition of adjournment referred to 'Congress' which means that both houses must be adjourned. So if either house is in session, not necessarily the House of the bill's origin (language of the clause), the bill cannot be Pocket Vetoed, ss pointed out earlier.

Second, pro forma sessions do not keep the Senate in session. The sessions break a longer adjournment into 3 day periods, a procedure resulting from the constitutional requirement that neither House may go into adjournment for no longer than 3 days without permission of the other. Both the Pocket Veto case and Wright v. US establish that Congress may not lengthen or reduce the 10 day window of consideration, the President must be able to return up until the close of the tenth day. If he returns it earlier he waives the rest of the period, but if he is prevented from returning it early that doesn't count as a Pocket Veto if he is still able to return it within the alloted time later. It follows then that Congress was in adjournment, even though technically it was only temporarily given the pro forma.

The only avenue left to fight on is the issue of empowerment of an agent of Congress to receive and record the return. The clause specifically states that non-return of the bill causes it to become law "unless the Congress by their adjournment prevent its return". He has stated very clearly that he returned the bill with a 'memo' to the House clerk. The constitution states that a Regular Veto occurs when a bill is returned unsigned with objections, and this has in fact occurred. Thus, it follows that he has shown that it is possible to return during adjournment. Congress has grounds to challenge the Pocket Veto to limit the scope to the original intention, simply that Congress must provide the President with up to 10 days consideration of a bill and provide a means of return in that period.

It might be argued that it is a requirement under the constitution that on receipt, the returned bill and objections must be entered into the House Journal of the bill's origin. However, for that to happen the House must be in session, which is not a requirement for the Regular Veto since Wright v. US. Further, not only must it be in session, there must be Quorum. It follows by logic that a Regular Veto does not require Quorum during the 10 day period, and thus immediate recording in the House Journal is not necessary for receipt, it simply must occur at the earliest convenience. An argument before court would be strengthened, but not dependent on, if the procedure for return (up to recording in the House Journal) is unaltered by the adjournment of Congress.

So, the short of it is they should just vote to override and let the courts sort it out, though since a Congressional win would effectively destroy an Executive power I doubt they would be successful. Further, I am pessimistic about the will of Congress to follow through on such a radical and controversial challenge... but I doubt a President will be so blatant and unpopular to allow an opportunity like this again.

Michael Stevens wrote on January 3, 2008 6:42 PM:

@ Dreamer

1. Congress will vote to override
2. Pelosi will make sure the override fails.
3. The (non-pocket), regular, ordinary veto will be sustained and the bill will immediately die.
4. With the bill dead, the issue of the legality of this claimed "pocket veto" will die along with it. Issue over.

While I suppose Congress could petition the courts to rule on the legality of Bush's claimed pocket-veto, I very much doubt they will.

With the bill dead and no issues left to be decided, the courts could refuse to even hear the argument.

Even if they did, there is little upside for the Congress to test their power with an Executive-friendly Supreme Court. And that's where the argument would inevitably find itself.

If Bush really wants to test this, he'll look for something the Democrats dearly want passed. And then he will pocket veto the bill without sending objections (regular veto) to the Congress.

Reid and Pelosi should be on the alert for any Democratic dream bills that are curiously allowed cloture just before a recess. They could then keep both the Senate and House in limited session to defeat the gambit.

Anonymous wrote on January 3, 2008 7:43 PM:

The President did not lawfully "pocket veto" anything. The bill is law. Congress doesn't need to "override" anything. Once the President failed to lawfully veto the bill, his inaction means the bill is not subject to any veto, nor does Congress have to override anything.

The President missed his chance to veto the bill. It is law. Members of Congress have standing to sue the President if he attempts to enforce his pocket veto.

Let's quit arguing over the pocket veto, and find a lead plaintiff that will bring suit against the Iraqi government.

Anonymous wrote on January 3, 2008 7:44 PM:

Once the US agrees that suit can be brought against the Iraqi government for mistreatment of POWs, the US will -- by implication -- be subject to similar suit by other nation's nations for similar POW abuse.

Anonymous wrote on January 3, 2008 7:46 PM:

Let's use this as a test:

- Does the Congress act as if this bill is law?

- Does the Congress think it has to "challenge" the President?

- Does the Congress cave in and avoid a court fight?

If the Congress refuses to act, they're not fully asserting their 5 USC 3331 oath. Fearing a confrontation is meaningless: The President has started the confrontation by using stuipd legal arguments in re pocket veto.

Congress should take this to court. Otherwise, the public should take Members of Congress to court through the grand jury process in re 5 USC 3331.

Kagro X Link wrote on January 3, 2008 7:51 PM:

Kagro X has two important cases on Kos, you may wish to review:

Wright v. U.S., 302 US 583 (1938).

Kennedy v. Sampson, 511 F.2d 430 (1974)

Note: The above link from TPM to Kos is not necessarily legally relevant. FYI

Anonymous wrote on January 3, 2008 7:57 PM:

"Why did the President do this?"

If he wants to go to the Iraqis and say, "I did all I could, but the _Congress_ is the one who permitted this . . ."

Maybe the President _agrees_ with the provision, but wants to _appear_ to disagree with it; but hopes to find a way to lose, but blame it on Congress.

Anonymous wrote on January 3, 2008 8:27 PM:

"Why did the President do this?"

The President can get away with it: Impeachment is off the table.

It wastes time. Distracts Congress from the President's alleged war crimes. GOP already blocking legislation. Why not distract Congress from the "excuse not to impeach": "Oh, we can't impeach, we have to spend time arguing with this President over non-sense."

If the President invaded Congress with armed force, would Congress do anything about it, or just "talk about it"?

Michael Stevens wrote on January 3, 2008 8:32 PM:

Anonymous wrote:

"The President did not lawfully "pocket veto" anything. The bill is law. Congress doesn't need to "override" anything. Once the President failed to lawfully veto the bill, his inaction means the bill is not subject to any veto, nor does Congress have to override anything."

You've got the facts of this very wrong.

The president only "claimed" to have pocket-vetoed the bill. Ignore what he said, focus on what he actually did. He did it quietly, but he did send down a regular old veto.

He sent the bill back to Congress. In sending the bill back to the Congress Bush fulfilled ALL the constitutional requirements for a real, true, regular old veto.

Because of this regular veto, there is no way this bill could possibly be construed to be law. Because Bush definitely DID veto the bill.

So the only way this bill can now become law is if it is over-ridden. Something I pray our Democratic Congress isn't stupid enough to do.

I believe an over-ride would just result in a court case that the president dearly seems to want.

parrot wrote on January 3, 2008 9:04 PM:

Why don't we skip this and just move directly to impeachment.

music wrote on January 7, 2008 11:14 PM:

very interesting.
i'm adding in RSS Reader