Do you recognize this document?

( – promoted by buhdydharma )

Subtitle: When is a pocket veto not a pocket veto?

Article 1, Section 7, Clause 2

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

There have been so many Bush crimes, so many little ones and big ones.  This is my first 2008 personal “V-8” moment.

Bush’s “pocket veto” of the Defense Authorization Bill on December 29, 2007.  Yeah, so I’m a bit slow – give me a break. I’ve been on vacation.

But Congress hasn’t been on vacation.

A “pocket veto” is a critical Constitutional issue.  It’s the only real way an Executive can deep-six legislation without a veto override by Congress.

This particular veto is not a legitimate, Constitutional pocket veto per Article 1, Section 7, Clause 2.

It’s a line in the sand.

On December 29, 2007, Bush “pocketed” the Defense Authorization bill passed and presented by Congress on December 19th. An Executive can “pocket” a veto, or put unsigned passed legislation aside so that it never becomes law, if Congress is not in session and the bill cannot be returned to the Hill within the prescribed ten day time frame.

However, two things are currently true until January 15, 2008 when the full Congress is reconvened:

1. During the adjournment of the House, the Clerk of the House has been instructed by the Speaker “to receive communications from the White House, including veto messages, meaning that bill return was possible.”

2. The Senate is technically in session and has been throughout the holiday season (to discourage potential Bush recess appointments).

According to an excellent LA Times article from yesterday, Congress is still Constitutionally and effectively in session, whether through House agents or through actual brief Senate sessions:

“Congressional and presidential use of agents to represent their branches has met constitutional muster. As the Supreme Court said in 1938, “The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.”

Specifically, in Wright v. United States (1938), the Court wrote the following distinction of what constitutes a Congress in session for the purposes of sending a vetoed bill back; as I read it, all or part of Congress in session actually suffices as the condition in which a vetoed bill can be returned by the Executive…which then opens it up for a potential veto override without rewrite.

“However, in Wright v. United States, the Court held that the President’s return of a bill on the tenth day after presentment, during a three-day adjournment by the originating House only, to the Secretary of the Senate was an effective return (emphasis mine). In the first place, the Court thought, the pocket veto clause referred only to an adjournment of “the Congress,” and here only the Senate, the originating body, had adjourned. The President can return the bill to the originating House if that body be in an intrasession adjournment, because there is no “practical difficulty” in effectuating the return. “The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive the bill.” Such a procedure complied with the constitutional provisions. “The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.”

Bush made it very clear in his Memorandum of Disapproval that he was invoking the indirect veto –  “The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution.”  

But Bush’s actions run counter to his words. Further in the Memorandum, “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.”

Robert J. Spitzer indicates that Bush did indeed send an “annotated” bill back to the House Clerk. In the timeframe of ten days.

“In this case, Bush tried to have it both ways. He pocket vetoed the bill as if Congress were entirely out of session — but then he did, in fact, return it to Congress by sending it and an outline of his objections to the House clerk. He did so, according to his veto message, “to leave no doubt that the bill is being vetoed.””

If Congress allows Bush to ignore the rules of a Congress technically in session and “pocket” a bill that he has been demanding to see for months, there are no enforceable boundaries for the Executive. I’m not certain there ever were for this Executive.

If the White House is truly working behind the scenes with Congress to get the bill rewritten without first overriding it – thus indicating that they are treating it as a regular Presidential veto, it establishes the direct precedent of an Executive who can clearly ignore the means by which Congress has historically remained in session (and means that have been approved by the SCOTUS in Wright v United States.

House leaders must decide soon how to replace the vetoed bill without launching a prolonged battle over it. All sides hope for a compromise fix that will allow a revised bill to be enacted quickly.

A spokesman for House Speaker Nancy Pelosi, D-Calif., said that she hopes to have a new defense bill passed and signed into law by the end of January. But negotiators will need a bit of time after Congress reconvenes to vet a fix that addresses the administration’s concerns.

House Leaders Assess Options on Vetoed Defense Bill

I’m not even touching on the critical details surrounding this particular Bush veto – that it may stall bonuses that will potentially affect re-enlistment for next few months and keeps essential money from the pocket of Veterans.

Bush’s current action against the Constitution is an action against the military and a reaction to demands from a corrupt Iraqi government. A government that has met few benchmarks and collaborated with an incompetent and corrupt US administration in squandering billions in reconstruction funds to date.

I’m not debating the legitimacy of concern over the disputed provision that Bush objects to. It may in fact create a cascade of litigation in areas the US has rarely had to forcefully defend – the gray area of the rights of an individual to bring suit against a foreign nation.  

I’m not even mentioning that Bush is again decrying an obstructionist Congress, yet criminally obstructs the rule of law himself at every turn.

As Spitzer states in his LA Times piece, “Presidents would have absolute veto power any time Congress is not actually in session, bestowing on the chief executive the very authority the founders sought to deny the office.”

If Congress chooses not to directly override the veto and then re-legislate by amendment, the door is open to future misuse of pocket vetos and recess appointments.

It opens the door to future Presidential abuse of the Constitution.

There will be a Democratic President soon. Exactly how much power do you want the President to have?

A living, breathing document was created and ratified some 220 years ago. The soul and intent of that experiment gathered independent states into a strong union by confirming the rights, independence and freedom of citizens, and by blocking the tyranny of present and future leaders.  

Mr. Bush and Members of Congress, do you recognize this document?

Additional insights on this veto:

Dailykos – Meanwhile: Bush Freezes Troop Specialty Pay/Bonuses

Dailykos – The “Pocket Veto” of the Defense bill is a disaster in the making

Dailykos – A prelude to another cave…

Firedoglake: Dubya’s Pocket Rocket

In Surprise Step, Bush Is Vetoing a Military Bill

7 comments

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    • exmearden on January 10, 2008 at 4:54 pm
      Author

    geez, I got stop this staying up all night stuff.

    • pfiore8 on January 10, 2008 at 5:15 pm

    they are creative.

    great title exme, solid and sobering analysis… and always happy to see you on the essay list.

    happy new year to you!!!

  1. Thanks very much.

  2. Great essay, exmearden.  Thank you.

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