Today’s Must Read

The eight year Constitutional law seminar that is the Bush Administration continues!

Today’s lesson: the pocket veto.

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.

But, as Kagro X at Daily Kos first pointed out, there’s a problem with that. Though the president said that “adjournment of Congress” allowed him to pocket veto, Congress was not, in fact, in adjournment.

To prevent administration monkey business during the holiday recess, Senate Majority Leader Harry Reid (D-NV) kept the Senate in pro forma session throughout. By keeping the Senate nominally in session (someone shows up for a few minutes every third day), Reid stifled the administration’s desire for a bunch of recess appointments.

So now House Speaker Nancy Pelosi (D-CA) is saying that the pocket veto is bunk. From The Hill:

“Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote,” said Nadeam Elshami, a spokesman for Pelosi. He said the Speaker is keeping all legislative options on the table.

Now, it’s possible that the White House just didn’t think this one through. Or maybe they thought no one would call them on it. In any case, the White House has responded with a Constitutional interpretation that seems somewhat improvisational.

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.

The Hill gets a take on the White House’s tap dancing from a Constitutional scholar at the Library of Congress — he gives it a resounding thumbs down.

As for what happens from here, it’s not clear. If the House moves for an override next week and the White House objects, the whole thing could end up in court. That’s probably not something the administration wants to happen. The pocket veto seems to be an executive power which, like executive privilege, is very infrequently tested in court. But with this administration’s fervent belief in the executive’s power, you never know.

Do we have our first contestant for the Bush Administration’s dumbest legal arguments of 2008?