Pocket Veto Law

Great Debates
21

The statement from the White House you cite is a meaningless act of having it both ways. It can’t have it both ways.

It can’t have it BOTH ways, but it can certainly have it either way. By exercising both vetoes they are simply foreclosing any pettifogging nit-picking that attempts to ignore a legitimate veto exercise. Which really is the point.

Here, I’ll say it again: Congress cannot unilaterally breach or obviate the constitutional Presidential veto authority. You can make an argument that the pocket veto is non-applicable, but doing so empowers the regular veto. You can claim the regular veto is inapplicable, but that empowers the pocket veto. You cannot claim that BOTH are inapplicable without breaching the constitutional Presidential veto authority. Which Congress cannot do.

No loophole, only a question of which veto Congress wants to consider valid. They can indeed claim the pocket veto is invalid–but to do anything about it they would have to re-convene and override the regular veto, or it would stand. Or they can claim the regular veto is invalid, in which case the pocket veto stands.

22

Who is claiming this? Certainly no one in this thread.

Nor has Pelosi or any House spokesperson that I’ve seen. They’ve taken the stand the pocket veto is invalid, therefore it is a regular veto and therefore a vote can be taken to override.

The question here, very clearly, is whether this is indeed the right Constitutional interpretation. That’s the only question.

23

Uh huh.

So in your analysis, then, what action could the President have done to veto this bill?

24

It may believe that it capable of acting by appointing an agent, but a court may disagree. The simple text of the constitution seems to state that an adjournment itself prevents a President from returning a bill. It makes no mention of agents or any such thing.

What constitutional purpose would an agent serve? Even in 1787, a President could have sent a messenger on horseback to the Speaker of the House or to the Vice President with the veto message, and those men could have recovened Congress for the purpose of overriding the President’s veto. This would be similar to reporting to an agent today. So why didn’t the framers make that distinction then?

It is my opinion that unless Congress is in town, in session, ready to act, then a President is not required to return a veto, agent or not…

25

Huh? My *question * is which type of veto is applicable. One is, the other isn’t. I don’t know which is: that’s why I started the thread to find out.

I do know that *both * actions can’t simultaneously be legitimate. If you disagree with that, cite a precedent that allows both a pocket veto and a regular veto to hold at the same time.

Or better, why don’t you answer the question that is before the thread instead of making cryptic comments?

26

In reading Article I, Section 7 we see that a veto has three parts

So a veto must be:

  1. Returned with objections
  2. The objections entered into the Journal
  3. The bill reconsidered

However

Now it seems to me that the Constitution, like in many other cases, is ambiguous enough that both sides are technically correct.

President - Even if I returned it to the deputy, the House by being adjourned cannot complete the veto process since no one is there to enter my objections onto the Journal or reconsider the bill.

SOTH - There is no time limit given for US. Return the bill and objections in 10 days and we’ll deal with it when we get back.

President - “Congress by their Adjournment prevent its Return” (emphasis added). The adjournment itself prevents its return no matter if you appoint the Clerk of the House, a deputy, or the Pillsbury Dough Boy to accept it while you’re away.

SOTH - There is a process in place to reconvene if necessary.

I don’t think Pelosi has a leg to stand on and I’m sure SCOTUS would take President Bush’s view.

On a similar note - The Senate is holding pro forma sessions to show that they are not at recess. What if a Republican senator sat there and AS SOON AS the session is called to order make a quorum call to effectively invalidate the session and thus preventing the required meeting within three days?

27

It serves a great deal of purpose, if you accept my logic as to the purpose of the pocket veto. Allow me to explain, by imagining the Constitution without this clause.

A presidential veto, the framers determined, must take the form of a communication to the house of Congress in which a bill originates. (They borrowed this from the New York and Massachusetts constitutions, which pioneered the two-thirds override.)

And the President has a ten-day time limit in which to act, after which the default is for the bill to become law. Otherwise, the President could sit on a bill that he didn’t like, forever.

Given those two provisions, and without the pocket veto, Congress could subvert the President’s veto power by adjourning while bills are on the President’s desk. If nothing else, Congress adjourns at the end of its two-year term, and before the Twentieth Amendment, the House of Representatives ceased to exist between March and December. There was no Speaker, no agent, no sworn members, no nothing. The President could be sitting with a bill on his desk, that he hates, and nobody to whom to return a veto. When Congress eventually reconvened, they could say, “Well, you had your ten days, and you didn’t do anything (because you couldn’t!), so that bill you hated is now law.” Given this power, Congress could play further games by pulling a surprise adjournment before the end of its term, leaving the President in the same predicament.

The pocket veto clause prevents this, by changing the default from law-without-a-signature to no-law-without-a-signature when Congress adjourns.

But alas, this solves one problem by creating another. What form of adjournment triggers the change–any adjournment, or only an adjournment which prevents a veto from being returned? If you say “any adjournment”, you open yourself to logical absurdities. Except when the Senate is in the grip of an all-night filibuster, each house of Congress adjourns every night. If the ten-day time period to sign a bill elapses at 6:42 p.m., and Congress adjourns for the night at 6:00, can the President pocket veto the bill? If the tenth day is a holiday, so that Congress isn’t in session, can the President pocket veto the bill? The designation of an agent avoids these problems by making it clear that adjournment of whatever flavor isn’t preventing the return of a veto–which, again, is the only reason to have a pocket veto clause.

28

There is no time in a pro forma session in which a senator could seek recognition. It goes like this, from the Congressional Record:

The presiding officer opens by sayings two dozen words and the session is immediately over. (Note that this session lasted nine seconds.)

29

Distinctions without a purpose, Exapno. No matter how it’s viewed, the Congress has to break with precedent to continue the bill without re-submitting it, as the House adjourned sine die at end of session. Bottom line is that they have to if they wish to assert the veto was not a pocket veto, then the regular veto would stand. If they treat it as a regular veto the White House might or might not challenge, as their purpose is accomplished either way. Without a court challenge no precedent is set.

Congress can treat it as a dead letter and re-submit, or treat it as a regular veto and attempt to get it through without correction. Reid and Pelosi have both openly admitted the purpose of Section 1083 is to allow people to collect from the current Iraqi government on claims against the Saddam government. Since almost all of the Iraqi funds in the US that could be impounded and/or seized are reconstruction monies appropriated by Congress from US taxpayers for Iraqi reconstruction, Section 1083 is an open attempt to enrich the tort bar at the expense of both US taxpayers and the Iraqi people. If the Democratic leadership wants to go to the mat for that in an election year (with rather dubious chances of success) I can’t see the GOP doing anything but encouraging them. :wink:

A neat bit of political judo, methinks.

30

Oh, my dear Exapno, you miss the subtle ingenuity of the action by the President.

If Congress accepts that the bill was vetoed by reason of an adjournment precluding the return of the bill, then it yields the ground on a long-simmering feud between the legislative and executive branches on this issue (see my discussion, particularly the litigation between Presidents Ford and Reagan and the Congress). This would be an acknowledgement by Congress that, in order to avoid allowing a “pocket” veto, it has to stay in session until all bills it has passed are past their 10 day limit.

If, on the other hand, the Congress accepts the return of the bill, to preserve the point they want to make about agent for return, then the House ends up having to deal with trying to override the veto, or admitting they can’t. They hardly are going to want to do that, since they would really rather have snuck the issue through without comment. If they attempt an override, they have to justify the provision, which is going to leave them hanging out on a limb. If they don’t attempt an override, then they end up with egg on their face for having passed a bill that on closer look apparently isn’t defensible in its inclusion of the provision which provoked the veto.

But the point isn’t that the President is trying to have it both ways. He only needs to return the bill with objections, which he has done. But, if he and his legal team are correct, and this “return” is not an acceptable return under the constitution, then it doesn’t matter if he returns it or not; it’s negated by application of the Constitutional provision. The only question left is which stinky mouse the Democrats will decide to chew.

31

Except that under Rule IV, a daily session needs a quorum (plus a prayer, a pledge of allegience, and a reading of the journal). The Senate does not use Robert’s Rules, Jefferson’s Manual, or Mason’s Manual - but it is still a basic parliamentary law that a session cannot be called to order without a quorum and to do so simply to avoid the possibility of a recess appointment should not stand. If I were President Bush, I would make a recess appointment and force the Senate to say either they are adjourned or in session to deal with the appointment.

32

Yes, but during those nine seconds, a Senator could stand up and scream “Point of order, Mr. President!” interrupting him and claiming as a matter of procedure that a quorum is not present…

33

I’d glad you’re not my political advisor.

Politically, this move fails in three important ways.

  1. Whatever short term gain might be made in strengthening the office of the president will be negated by the outcome of the November election, no matter who wins.

  2. The leverage the White House has had by claiming Congress was not funding the troops in timely fashion is now also negated.

  3. A protracted debate on the provisions of the bill will call attention to the fact that the White House did not see this clause or its effects before passage; will put the White House in a bad light by seeming to protect corrupt foreign governments from legitimate suits; and will be subject to rhetoric that the troops aren’t being given their pay raise, even if it is to be made retroactive.

It’s true that the lack of political acumen by the Democratic Congress has matched the lack of political acumen of the White House over the past year. In their race to the bottom, it’s impossible now to predict which of them will win. I’ve said all along that the contents of the bill do not matter because some compromise will be found to get around the constitutional issue. Even so, this veto appears to be a Kwanzaa gift to Congress that they can play with as they choose with poor Dana Perino being left to twist slowly, slowly in the wind of daily questioning. Or, to use your metaphor, it is a mouse that the House can torment for days on end until they decide to put an end to its suffering.

The public wants this bill. It has been vetoed for reasons the public will not find acceptable, or at least reasons can that be so easily spun that way that the Democrats will have to top (or bottom) their ineptitude not to successfully do so. I don’t see any political gain for the White House on this issue.

34

A quorum is presumed to be present at all times unless a point of order is made that a quorum is not present, which leads to…

A senator cannot request a quorum call without first being recognized by the presiding officer. The question of whether a quorum is present does not allow a senator to interrupt someone holding the floor. Cite: see page 1055 regarding interruptions. (not sure if that link is temporary, it works for me in preview.)

35

Oh, and the other thing is, that rule applies to the commencement of business on a new legislative day, not a calendar day. A legislative day is completed once the Senate adjourns, but not recesses. If you notice in the bit I copied from the Congressional Record below, the Senate is still on the legislative day of December 19, therefore there is no need to approve the journal and do all that other stuff.

36

I’m not going to debate the political situation with you; I suspect you of having preconceived notions and it’s not what this thread was about, as I read it (though perhaps you really intended it to turn into a debate on what happened). The point is, the President’s action in returning the bill while at the same time highlighting the possibility it was effectively negated by “pocket” veto has thrust onto the Congress a quagmire it would prefer not to face: hence the shouts of outrage from the leadership and somewhat illogical assertions about the “pocket” veto issues, assertions we have in this thread shown are illogical. As you yourself point out, the bill was negated, either by a valid veto returned to the House, or by a “pocket” veto by operation of the Constitution. For the Democratic leadership to complain about the procedures is thus a sign of confusion sparked, I suspect, by their unhappiness at having to have this puppy land at their doorstep again. :stuck_out_tongue:

37

Let’s review.

I ask in the OP that the contents of the bill not be debated and to just stick to the law. Both Tully1 and you give political interpretations of why a veto occurred, both talking about the “political judo” and “ingenuity” of the White House. After I respond, carefully neutrally, you have the chutzpah to tell me I might really have wanted a debate after all? And my notions are preconceived while yours aren’t?

I note that you’ve already been called out by a mod for your behavior in another legal thread. Do you want to try for two?

I’ve thanked you for your response about the law. I don’t thank you for your petulant behavior afterward. Go play in somebody else’s thread if you can’t divorce yourself from partisanship long enough to stick to facts.

38

[Moderating]

Exapno, in the OP you asked that the contents of the bill not be discussed, which as far as I can see has been largely adhered to. It seems to me that some discussion of the politics of why certain veto strategies would be used here is virtually unavoidable. I note that you yourself have engaged in the political aspects of the discussion. I do not think that the other posters have been out of line here. And you should know by now that the OP really can’t dictate who may and may not participate in a thread.

You may not have intended this, but I think at this point the best thing is to move this to GD. I would request that all participants keep the discussion civil.

Colibri
General Questions Moderator

39

Um, I defy you to legitimately characterize my response in post number 36 as either “petulant” or “partisan.” Partisan it most certainly isn’t; you should know by now I’m about as non-partisan here as it gets (I am, by philosophy, as well as temprement, a middle-of-the-roader and think both sides suck equally badly and do equally well). I haven’t said anything about the merits of the bill, or even hinted at whether I agree or disagree with either the effort to include the underlying provision, or the method of attempting to veto the bill. And unlike some posts, where I adopt a disapproving tone regarding people’s actions, I wasn’t the least disapproving of your posts here; I simply was stating that I wasn’t going to debate the political issues, which was where we were sliding to with our posts. And it seemed to me with your post just prior that you were ready to do just that, which is why I said you might really be wanting to; in which case I was going to suggest a moderator send this puppy where it actually ended up going.

So, I don’t know what pushed your button, but I wasn’t pushing it deliberately, nor, I think, was my post here pushing it legitimately, without me realizing it.

40

Put very simply, it was your use of the word “ingenuity.” You did not provide a cite or make a case that this was a deliberate strategy of the White House. Why not the possibility that this was legal ineptitude, that it was being slippery and dishonest, that the speechwriters were just trying to include every case made to them without understanding the implications, or any other interpretation? “Ingenuity” has implications of its own, and they can only be construed one way.

If you have a cite that this was all a deliberate strategy instead of a last minute attempt to rescue a large-sized error, post it. Otherwise, everything you said is a partisan political position.

Now that we’re in GD you’re free to be as partisan as you want, of course.