OK, so the Fiscal Cliff legislation has passed Congress the day before Congress adjourns. For those of you who slept through social studies, remember that if a law hasn’t been signed before Congress adjourns, then it dies as a “pocket veto.”
Let’s consider a scenario:
President Obama signs the legislation aboard Air Force One, while flying back to Hawaii to finish his vacation. However, before the plane reaches Hawaii, a catastrophic malfunction causes Air Force One to spiral into the Pacific, instantly killing everyone aboard.
Legally, has the legislation been signed into law, or not? The copy the president signed has been obliterated, along with anyone who can testify that the signing ocurred. Do they have to rush a new copy to Joe Biden and have him sign it the moment he takes the oath of office?
Legally, it’s law as soon as it is physically signed.
But if nobody knows it’s been signed, then it’s kind of a moot point. So Congress could reconvene and send the legislation again to President Biden. It doesn’t hurt anything if the same legislation is signed twice.
Nitpick, isn’t there a time limit on a pocket veto? That if Congress is still in session when the bill hasn’t been signed for X days, then it becomes law anyway?
(I always liked the pocket veto clause - it lets a Prez kill a law when Congress has the numbers to outvote a traditional veto!)
From a policy standpoint, it’s law once the POTUS tells the affected departments to start doing things in accordance with it (by memo or whatever). That’s why it doesn’t matter when the FC bill is signed; he’s already told the affected departments to treat it as law.
FWIW, I found a case where the Supreme Court found that acts are effective upon the day they are signed. This case based its conclusions on an earlier case in which a proclamation was made on one day, and published several days later, but the Supreme Court found that the proclamation was effective when signed, not when it was registered. I suppose one could infer that as long as the President signs the act, it becomes effective for that day, and simply because an original signed bill is not deposited for codification in the US Code or whatever, would not constitutionally invalidate the signature.
I’m still not following. You said that it doesn’t matter when the fiscal cliff bill is signed as long as he orders departments to comply with the law. The president can’t order departments to do things (like change tax rates) if the law doesn’t authorize him to give those orders, and departments can’t treat a bill like its law until it is signed.
In the OP’s scenario, if Obama orders departments to comply with the fiscal cliff bill, and the bill and the President go down in Air Force One before the bill is signed, the order to comply with the bill is not legal. There’s no statutory authority for the departments to carry out those actions. Sure, Obama can tell the departments to get ready to carry it out, but until it is signed, the bill isn’t law, it isn’t effective law, it isn’t even sorta-like a law.
It’s a really interesting question and it kind of illustrates the difference between the law in theory and the law in fact. To make an analogy, a contract that is signed and then lost is still legally binding, but the fact that it’s technically legally binding is tough comfort to someone who is desperately trying to convince a skeptical judge and/or jury of the existence of the contract that somehow got dropped out in a field and was eaten by a horse (oops).
The President still has ten days to sign the bill even if Congress adjourns, the bill doesn’t die as soon as Congress adjourns. I don’t know if this is what you meant and just weren’t clear.
For many years (decades I’m pretty sure) Congress has designated an agent to receive veto messages when they adjourn so that pocket vetoes don’t happen. This is based on a 1938 Supreme Court decision though both Bushes and Clinton attempted pocket vetoes even though there was an agent.