Bush attempts to pocket veto defence bill.

[Yogi]

From the Associated Press

CRAWFORD, Texas (AP) — President Bush on Friday headed toward a constitutional confrontation with Congress over his effort to reject a sweeping defense bill.

Bush announced he would scuttle the bill with a "pocket veto" — essentially, letting the bill die without his signature 10 days after he received it, or the end of Dec. 31.

But that can happen only when Congress is not in session; otherwise, the bill becomes law without a formal veto in 10 days. And the Senate maintains it is in session because it has held brief — sometimes only seconds long — meetings every two or three days with only one senator present.

The White House's view is that Congress has adjourned.

It was unclear how the executive and legislative branches would determine whether, in fact, Bush's lack of signature would amount to vetoing the bill or turning it into law.

"My withholding of approval from the bill precludes its becoming law," Bush said in a statement of disapproval sent to Congress.

The president said he was sending the bill and his outline of objections to the House clerk "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."

I guess Bush isn't worried at all about impeachment. It'll be interesting to see how the Democrats fold on this one.[/quote][/url]

[Glocksman]

IANAL, but the Supreme Court in the past has given wide deference to the other branches with regards to how they organize themselves internally (provided no law is violated).

Personally I think Congress has the power to determine whether or not it is actually in session and Bush is wrong in assuming that the Executive's saying the Legislature isn't in session carries more weight than Congress saying it *is*.

[CaptainChewbacca]

A congressional session shouldn't consist of a ten-second interval between two bangings of a gavel by a junior congressman in an empty room. If Congress wanted to take a stand on this, they should've actually taken a stand.

[SirNitram]

Posted it here, but this has already gotten more discussion. Heh.

Yea, this is kinda nutty. The bigger worry is if pro-forma just no longer counts because he says so, then he can recess appoint as he damn well pleases.

[SirNitram]

A congressional session shouldn't consist of a ten-second interval between two bangings of a gavel by a junior congressman in an empty room. If Congress wanted to take a stand on this, they should've actually taken a stand.

They did take a stand. They sent him the bill. If he wants to legally veto it, he has to use the veto pen. He cannot say 'Pro-Forma doesn't count despite longstanding precedent'. He is not the damn king.

[CaptainChewbacca]

Has pro-forma been used in such a circumstance before, with congress opening and closing for seconds a day with only a single member present?

[SirNitram]

Has pro-forma been used in such a circumstance before, with congress opening and closing for seconds a day with only a single member present?

Yes. That's what Pro-Forma is. It was used originally back when there was consistant bad blood between Senate and House, because neither wanted to ask the other's permission to go on break, and Article 1, Section 5 said you had to ring it in every three days if you didn't have permission.

The recordholder for sprinting up to the Capital is Senate Metcalf of Montana during the 70s, who got it down to 15 seconds. That's time-to-Capital, not the duration. Duration is how long it takes you to ring the gavel, ask if there's business, see no one around having left sticky-notes, and ring it out.

[CaptainChewbacca]

Has pro-forma been used in such a circumstance before, with congress opening and closing for seconds a day with only a single member present?

Yes. That's what Pro-Forma is. It was used originally back when there was consistant bad blood between Senate and House, because neither wanted to ask the other's permission to go on break, and Article 1, Section 5 said you had to ring it in every three days if you didn't have permission.

The recordholder for sprinting up to the Capital is Senate Metcalf of Montana during the 70s, who got it down to 15 seconds. That's time-to-Capital, not the duration. Duration is how long it takes you to ring the gavel, ask if there's business, see no one around having left sticky-notes, and ring it out.

I love our crazy, broken government. I need to sneak in there with 5,000,000 post-its.

[Flagg]

So basically the bill will become law and Captain Retarded will just say "Naaah uuuh, you wasn't in session for realsies <retarded laugh>"? Awesome.

[SirNitram]

So basically the bill will become law and Captain Retarded will just say "Naaah uuuh, you wasn't in session for realsies <retarded laugh>"? Awesome.

I have no goddamn clue how this will play out. The pocket veto shouldn't hold. But the Pentagon is sufficiently stacked with appointees that they might back it. Which would mean a costly legal battle to try and get it to hold.

[Block]

So basically the bill will become law and Captain Retarded will just say "Naaah uuuh, you wasn't in session for realsies <retarded laugh>"? Awesome.

I have no goddamn clue how this will play out. The pocket veto shouldn't hold. But the Pentagon is sufficiently stacked with appointees that they might back it. Which would mean a costly legal battle to try and get it to hold.

Quite honestly I hope it does go that route. The legislative and judicial branches need to start putting some limits on the executive. Since Nixon, the executive has just been taking more and more power for itself, and it's time that those abuses were stopped.

[Flagg]

So basically the bill will become law and Captain Retarded will just say "Naaah uuuh, you wasn't in session for realsies <retarded laugh>"? Awesome.

I have no goddamn clue how this will play out. The pocket veto shouldn't hold. But the Pentagon is sufficiently stacked with appointees that they might back it. Which would mean a costly legal battle to try and get it to hold.

It depends on whether the guys in the Pentagon in position to act on the legislation have enough of a sense of the long term. Because unless they're sitting on a nice fat retirement, then I wouldn't expect the next POTUS (who will almost certainly be a Democrat) to keep you around. Unless it's Hillary who strikes me as an executive power hoarder, herself.

[Gil Hamilton]

Bush has to lose this one. Pro-Forma sessions has a long standing precedent and history. He can't just decide to be contrary and say "nuh uh!". If he's really oppose to this bill, he should have picked up his Buck Rogers Space Action Pen and scribbled his name on a formal veto. Since he didn't, too bad, it's law, sucker.

[bilateralrope]

Why is Bush trying this instead of giving is a formal veto ?

[LMSx]

Why is Bush trying this instead of giving is a formal veto ?

Just because. Literally.

He's got a long record of doing shit like this just to establish executive power. Bush *could* have gotten Congress to sign off on FISA changes, for example, but he went ahead and did it warrantlessly, to prove that he doesn't need their approval to do it.

[The Yosemite Bear]

A congressional session shouldn't consist of a ten-second interval between two bangings of a gavel by a junior congressman in an empty room. If Congress wanted to take a stand on this, they should've actually taken a stand.

They did take a stand. They sent him the bill. If he wants to legally veto it, he has to use the veto pen. He cannot say 'Pro-Forma doesn't count despite longstanding precedent'. He is not the damn king.

don't say that too loudly he may send you to the tower and have you broken on the rack.

[Johonebesus]

Bush has to lose this one. Pro-Forma sessions has a long standing precedent and history. He can't just decide to be contrary and say "nuh uh!". If he's really oppose to this bill, he should have picked up his Buck Rogers Space Action Pen and scribbled his name on a formal veto. Since he didn't, too bad, it's law, sucker.

He only loses if someone stands up to him. He's decided that he has the power to selectively decide which laws to enforce. It might not be legal, but as long as everyone caves in to his wishes, he'll keep on doing it just fine. Given the history of the past several years, do you really think it's likely Congress is going to stand up to him on this one?

[CmdrWilkens]

As a small aside Bush did two things:

1) He claimed that this was a pockt veto

2) He vetoed it anyway. That was the line about sending the bill to the Clerk of the House along with his objections which is the literaly constitutional language for vetoing the bill.

So basically he's trying to have it both ways: claiming he has the right to declare congress out of session just because he wants it that way AND still vetoing the bill anyway by returning it to the House as required by the provisions for a veto.

[Ryan Thunder]

Purely out of curiosity, what would the bill do, anyways?

[Surlethe]

This sweeping abuse of executive power is beyond absurd. Now Bush says that, essentially, he has the power to declare Congress in or out of session.

Purely out of curiosity, what would the bill do, anyways?

Fund the military.

[Glocksman]

As a small aside Bush did two things:

1) He claimed that this was a pockt veto

2) He vetoed it anyway. That was the line about sending the bill to the Clerk of the House along with his objections which is the literaly constitutional language for vetoing the bill.

So basically he's trying to have it both ways: claiming he has the right to declare congress out of session just because he wants it that way AND still vetoing the bill anyway by returning it to the House as required by the provisions for a veto.

Bush (or his legal advisers) know he has no authority over declaring Congress adjourned.
Article 1, Section 7 is explicit about it.

Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

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;[2] 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.

Given that language and the long history of pro forma sessions, I have no doubt SCOTUS (even Alito and Roberts) would slap him down in a heartbeat.

[Ryan Thunder]

This sweeping abuse of executive power is beyond absurd. Now Bush says that, essentially, he has the power to declare Congress in or out of session.

Purely out of curiosity, what would the bill do, anyways?

Fund the military.

That's it? So he's just vetoing stuff for the hell of it now?

Pathetic...

[Glocksman]

Here's the official White House statement:
Linka

I am withholding my approval of H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008," because it would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts and because it would undermine the foreign policy and commercial interests of the United States.

The economic security and successful reconstruction of Iraq have been top priorities of the United States. Section 1083 of H.R. 1585 threatens those key objectives. Immediately upon enactment, section 1083 would risk the freezing of substantial Iraqi assets in the United States --including those of the Development Fund for Iraq (DFI), the Central Bank of Iraq (CBI), and commercial entities in the United States in which Iraq has an interest. Section 1083 also would expose Iraq to new liability of at least several billion dollars by undoing judgments favorable to Iraq, by foreclosing available defenses on which Iraq is relying in pending litigation, and by creating a new Federal cause of action backed by the prospect of punitive damages to support claims that may previously have been foreclosed. This new liability, in turn, will only increase the potential for immediate entanglement of Iraqi assets in the United States. The aggregate financial impact of these provisions on Iraq would be devastating.

While my Administration objected to an earlier version of this provision in previous communications about the bill, its full impact on Iraq and on our relationship with Iraq has become apparent only in recent days. Members of my Administration are working with Members of Congress to fix this flawed provision as soon as possible after the Congress returns.

Section 1083 would establish unprecedented legal burdens on the allocation of Iraq's funds to where they are most needed. Since the fall of Saddam Hussein, I have issued Executive Orders to shield from entanglement in lawsuits the assets of the DFI and the CBI. I have taken these steps both to uphold international legal obligations of the United States and to remove obstacles to the orderly reconstruction of Iraq. Section 1083 potentially would place these crucial protections of Iraq's core assets in immediate peril, by including a provision that might be misconstrued to supersede the protections I have put in place and to permit the judicial attachment of these funds. Iraq must not have its crucial reconstruction funds on judicial hold while lawyers argue and courts decide such legal assertions.

Moreover, section 1083 would permit plaintiffs to obtain liens on certain Iraqi property simply by filing a notice of pending action. Liens under section 1083 would be automatic upon filing a notice of a pending claim in a judicial district where Iraq's property is located, and they would reach property up to the amount of the judgment plaintiffs choose to demand in their complaints. Such pre-judgment liens, entered before claims are tested and cases are heard, are extraordinary and have never previously been available in suits in U.S. courts against foreign sovereigns. If permitted to become law, even for a short time, section 1083's attachment and lien provisions would impose grave -- indeed, intolerable -- consequences on Iraq.

Section 1083 also includes provisions that would expose Iraq to increased liability in lawsuits. Contrary to international legal norms and for the first time in U.S. history, a foreign sovereign would be liable for punitive damages under section 1083. Section 1083 removes defenses common for defendants in the United States -- including res judicata, collateral estoppel, and statutes of limitation --upon which the Iraqi government has relied. And section 1083 would attempt to revive a $959 million judgment against the new democratic Government of Iraq based on the misdeeds of the Saddam Hussein regime.

Exposing Iraq to such significant financial burdens would weaken the close partnership between the United States and Iraq during this critical period in Iraq's history. If Iraq's assets are frozen, even temporarily, that could reduce confidence in the Iraqi dinar and undermine the success of Iraq's monetary policy. By potentially forcing a close U.S. ally to withdraw significant funds from the U.S. financial system, section 1083 would cast doubt on whether the United States remains a safe place to invest and to hold financial assets. Iraqi entities would be deterred from engaging in commercial partnerships with U.S. businesses for fear of entangling assets in lawsuits. Section 1083 would be viewed with alarm by the international community and would invite reciprocal action against United States assets abroad.

So far it's straightforward, as such things go.
Here's what has me scratching my head over just what he's trying to accomplish.

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.

So he says that a pocket veto would work because Congress is adjourned, but to avoid unnecessary litigation, he'll also veto it normally.

He's trying to make a point about something and if I had to guess, he's laying the groundwork to make recess appointments the next time Congress resorts to pro forma sessions to keep him from doing exactly that.

This legislation contains important authorities for the Department of Defense, including authority to provide certain additional pay and bonuses to servicemembers. Although I continue to have serious objections to other provisions of this bill, including section 1079 relating to intelligence matters, I urge the Congress to address the flaw in section 1083 as quickly as possible so I may sign into law the National Defense Authorization Act for Fiscal Year 2008, as modified. I also urge the Congress to ensure that any provisions affecting servicemember pay and bonuses, as well as provisions extending expiring authorities, are retroactive to January 1, 2008.

GEORGE W. BUSH

THE WHITE HOUSE,

December 28, 2007.

[SirNitram]

This sweeping abuse of executive power is beyond absurd. Now Bush says that, essentially, he has the power to declare Congress in or out of session.

Purely out of curiosity, what would the bill do, anyways?

Fund the military.

That's it? So he's just vetoing stuff for the hell of it now?

Pathetic...

The claimed reason for the dual-veto is that the bill would threaten Iraqi assets in US banks to being claimed in civil suits. Except that that only is possible with state sponsors of terrorism, and a specific law already prevents this from happening with Iraqi funds(Detailed in the thread I made earlier). This obviously is a lie.

A look over of the bill itself says that he might be vetoing it because it also contains a pay raise for the troops(Which he's opposed before, back in May), and limits on putting up antimissile sites in Europe.

[The Yosemite Bear]

yes, we can't very well have those peasant levvies getting upitty now can we. What's next a "Magna Carta" or other such document?