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Did Bush "Pocket Veto" The 2008 Defense Authorization Bill Or Actually Veto It?

Shane-O's picture

It seems that Bush attempted to do both at the same time.

On Friday, President Bush issued a Memorandum of Disapproval on H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008."

In the Memorandum, the President states he is "pocket vetoing" the legislation. Yet in the same document, the President states he is sending the bill back to the House with objections. So which is it - a pocket veto or a veto?

More importantly, why the transparent attempt to do both?

The pertinent Constitutional clause regarding presidential vetoes is Article I, Section 7, clauses 2 & 3, known as "The Presentment Clause."

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. 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.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

If we consider the statement of the President on H.R. 1585, from his Memorandum of Disapproval, it is unclear whether he pocket vetoed the bill or actually vetoed it:

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. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, 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.

[emphasis added]

Clearly, Bush claims a pocket veto under The Pocket Veto Case however, in returning the bill with objections, wasn't that a veto under the terms of the Constitution? And more importantly, why did he take such a course?

One overarching rule permeates this discussion:

Pocket vetos are not subject to override by the Congress.

Overrides, according to the section of the Constitution quoted above, require a 2/3 "Yea" vote, or 290 votes in the House and 67 votes in the Senate.

On passage of the Defense Authorization Bill, the following were the tallies for each chamber of Congress:

House Roll Call No. 373, On Passage: 397 - 27.

House Roll Call No. 1151, On Agreeing to the Conference Report: 370 - 49.

Senate Roll Call No. 359, On Passage: 92 - 3.

Senate Roll Call No. 433, On Agreeing to the Conference Report: 90 - 3.

Therefore, there is a veto-proof majority in both chambers of Congress that could override a presidential veto. Bush's solution - the pocket veto, thereby thwarting any attempt to override.

The question then becomes: did President Bush truly pocket veto the bill?

It could be credibly argued that he did not.

The pocket veto comes from the following section of the Constitution cited above:

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.

Where a bill must be returned is described earlier in the section:

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.

[emphasis added]

The House of Representatives has adjourned (while the Senate has not). As H.R. 1585 originated in the House, that is the chamber to which the president must return the bill. Bush claims a pocket veto, and as the House is adjourned, the bill's return is prevented and the bill shall not become law. Also, if it is a pocket veto, it cannot be considered for a veto override.

But President Bush played both sides of the fence on this one (shocking). He states that he is using a pocket veto, while at the same time he says in his Memorandum of Disapproval:

In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, 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.

Which is it? A veto? A pocket veto?

As a selfproclaimed champion of "strict construction" of the Constitution, Bush might be in a pickle.

He has, by his own admission, returned the bill with his objections to the House from which the bill originated. Is that not a "veto" under the language of the Constitution? Therefore, the House may reconsider and override said veto?

Needless to say that President Bush's desire to "avoid unnecessary litigation about the non-enactment of the bill" is dubious, at best. He is trying to avoid an override claiming a pocket veto while at the same time actually vetoing the bill under the plain terms of the Constitution. Litigation over this is more than likely.

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Submitted by lambert on

I've been occupied elsewhere, but this is an interesting post. Whatever it is, it's Bush grabbing for power, no doubt using some concocted legal theory. And it's also classic Bush to try to slip something really, really nasty past us during the holidays, and while we're all distracted by Iowa. So, please, don't let this one drop!

I wonder if you looked at this post and whether there are additional insights?

UPDATE Here is a briefing by a Senior Administration Official on this topic.

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

Submitted by [Please enter a... (not verified) on

It's a veto; it's a pocket veto! It's two vetos in one! Sounds like some more Fourth Branch legalism.

W: "Unka Dick, I really hate this part of the bill, the one where our courts can control Iraqi's money.How else are we gonna steal all their money if we can't get it out of our banks? Oh yea, and that Maliki fellow hates it too."

DarthCheney: "Well then GeorgieBoy, since you hate it so much, you really need to show those nasty demoncrats exactly how much this has displeased you. Veto it real good!"

David ASPington ( the most vile legal traitor in the land) "How dare they displease you King George! Make them rue the day! Veto it and pocket veto it! That'll show them smarmy suer enablers who if boss!"

"And besides," Aspington continues hissing, there's another part in that bill about starting a new Truman like commission and looking into fraud and waste in government contracting for the war, and also into war profiteering. We worked behind the scenes to get that discluded from the bill, but none of our orc congresscritters could figure out how to protest its inclusion and still be able to return to their districts."

W: "Well alrighty then, the veto thing will be for the Iraqi money part of the bill. The pocket veto thing will be for the war profiteering part. They can override and let our courts keep Maliki's money, but they can't touch that Truan Commission thang not ever ever again! I'm the deciderer and so say I."

Tada!

Shane-O's picture
Submitted by Shane-O on

I thought it best to start with the Procedure part first - the motive, might be more interesting.

Bush claims that it is Section 1083, and 1083 alone that caused his pocket veto/veto - but there is SO much more to this bill that the White House might object to.

I'm only 63 pages into a careful read of the 603 page bill, and there are a number of possible motives - most notably (thus far), the fact that Congress has essentially stopped Bush's plan (if enacted) to put a missle defense system in eastern Europe - Section 226.

There are a number of other reporting requirements which would give the Bush Administration some problems - among them, the issue brought up by Digby (thanks for the link, Lb!). Also, personnel and equipment readiness.

And that's only the first 1/10 of the bill...

The Bill of Rights is a born rebel. It reeks with sedition. In every clause it shakes its fist in the face of constituted authority. . . . it is the one guaranty of human freedom to the American people. - Frank Irving Cobb

Submitted by lambert on

This is heroic stuff, Shane-O. Thanks. Big time.

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

Submitted by [Please enter a... (not verified) on

somebody--jawbone I see now it was--had noted this over at Atrios' place:

Correspondent to Digby posits that BushBoy's "veto" of the military bill has little to do with possilbe lawsuits against Saddam Hussein--instead, it deal with intelligence.

http://digbysblog.blogspot.com/2...- wondering.html

Re: your post "Where Will It End?" I suspect that the key to the pocket veto has nothing to do with Iraqi assets. Rather, it is contained a little line buried in the last paragraph of the Memorandum of Disapproval: "... I continue to have serious objections to other provisions of this bill, including section 1079 relating to intelligence matters . . ."

What is in 1079 you ask? A provision requiring the Director of National Intelligence to make available to the Congressional intelligence committees, upon the request of the chair or ranking minority member, "any existing intelligence assessment, report, estimate, or legal opinion," within certain conditions. See here.(I don't know if that link will continue to work...but you can requery
HR 1585 yourself if it is broken by the time you write this.)

Hhhhmmmm.... Wheels within wheels.
jawbone | 12.29.07

Every time I hear somebody--R or D--pine mournfully for the line item veto, I want to rub their nose in something like this like the puppy's nose in the pee on the carpet. This is the sort of "imposition upon the power of the Executive" which is just what we need. Those who think it means only "cutting out wasteful spending" are, not to put too fine a point on it, wrong.

intranets's picture
Submitted by intranets on

From what I have been reading, the concern is not 'lawsuits against Iraq for Saddam-era terrorism".

It is in fact a concern of reciprocal lawsuits. So Iraqis could sue the US for described acts committed by US security forces that might fall under the definitions contained in Section 1083.

The other real concern is that the Saudis told Bush not to pass this. The widows of 9/11 would then have a case against Saudi nationals and even Saudi companies involved in 9/11. Technically the Bin Laden family could be sued under Section 1083. That is what the veto is all about.

Submitted by [Please enter a... (not verified) on

I believe he did both - a pocket veto and a "true" veto: He issued a "Memorandum of Disapproval" stating that he was "withholding approval" of the bill. The memo states that he was "prevented" from returning the bill to Congress due to its "adjournment" citing The Pocket Veto Case as authority. However, in the memo the President also states: "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 significance is whether or not Congress can simply try to override the President's NDAA "disapproval/veto" when it returns on 13 Jan, or whether it has to re-introduce and re-pass new NDAA legislation. It will be interesting to see which tack it takes, and whether the President opposes that tack. I am sure an NDAA will get passed, but how it gets passed will set some precedent for defining when the pocket veto can be used in the future.

I personally hope Congress decides to merely override the veto - they have the votes to do so. Then see what the President chooses to do.