TPM on "The Pocket Veto" (*'s latest assault on constitutional law)

-snip

Last week, the president claimed to have sunk Congress' defense authorization bill by pocket veto. Now Democrats are saying he can't do that.

We'll start first with the Constitution says, and then go on to what the Bush administration says it says.

Article I, section 7 of the Constitution says that the president must sign or veto legislation passed by Congress within ten days (not counting Sundays). If he signs it, it becomes law. If he vetoes it, then Congress can override his veto with a two-thirds majority in both houses. And if he does not sign or veto it while Congress is in session, it becomes law. But if Congress is not in session and he doesn't sign it, then it neither becomes law nor can Congress override it. The bill is dead. That's a pocket veto.

So on December 28th, the president proclaimed that the defense authorization bill was dead by pocket veto. (For some background on the substance of the dispute -- why Bush doesn't like the bill and Dems' frustration with the fact that the administration didn't raise the objection until after the bill passed -- see here.) Congress will just have to start over. Keep in mind that the bill passed both houses with veto-proof majorities.

-snip

http://www.tpmmuckraker.com/archives/005010.php

BUT..the senate remained in session:

Because the bill has so much in it for veterans and active members of the Armed Forces, Bush apparently doesn't dare sign an affirmative veto. Instead, he'll pretend it... just went away on its own.
But this bill was presented to the president for his signature on December 19th. It's been eight days since then, not counting Sundays as the Constitution outlines. Seven if you give an extra day for Christmas. Hasn't been ten days yet.

Not only that, but you may recall that the Senate has remained in session all this time explicitly to prevent trickery like this. The most oft-cited reason was to prevent recess appointments, but the pro forma sessions -- the most recent of which was held today, yes, the very day Bush claimed there was no session -- also serve to avoid adjournment, and therefore the pocket veto.

-snip
http://www.dailykos.com/storyonly/2007/12/28/171914/13/822/427337

or that he's hired better Counsel. Nice try, W!

I suggest our leaders in Congress declare it as such, and move on. If * wants to claim its not, he has the burden of proof. Let him try to take it to the supreme court.

True, the Senate was in session, they say. But we sent the president's veto to the House, and they were in recess. So voila! pocket veto!

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. It argues that a pocket veto was possible because the House, where the bill originated, was out of session.
“A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law,” White House Spokesman Scott Stanzel told reporters Monday.

(from Muck)

There are a couple of lower court cases that support this view and Congressional leaders from both parties have taken this position in the past.

Chimpy isn't the first president to try the ploy of claiming that he has pocket vetoed a bill, but simultaneously covering his ass by returning it with a statement of objections. Both daddy Bush and Bill Clinton acted in a similar (if not exactly identical) fashion. There are no magic words required to veto a bill. (In fact, the word veto never appears in the constitution). All that is necessary is for the president, within ten days, to return the bill to the house where it originated with a statement of his objections. Chimpy, notwithstanding his claim of a pocket veto, fulfilled the constitutional prerequisites of a "return veto".

Louis Fisher, a constitutional scholar at the Library of Congress, said that the president is inviting a constitutional fight in trying a pocket veto.

“The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto,” Fisher said.

-snip

http://thehill.com/leading-the-news/democrats-say-bush-cant-pocket-veto-defense-bill-2

not via the pocket veto route, which can't be overriden, but by the regular "return" veto, which can be overriden. Having read his learned paper on pocket veto controversies, I think its safe to say that he would agree that the bill didn't become law, but rather was vetoed, but is subject to override.

Will the courts decide this?

sense of the senate on this ass.

:mad:

with the Constitution?