President Bush has apparently caught Congress off-guard as he vetoed a defense spending bill that everyone assumed he would pass. And here is confusion over whether he really vetoed the measure or pocket-vetoed the measure. And for the press, there is uncertainty over what a pocket veto actually is.
But first, the bill. Congress send the massive bill (HR 1585) to the president before Christmas, and right before the House adjourned for this session. One provision added to the bill back in September by Senator Frank Lautenberg (D N.J.) is what sparked Bush's disapproval message. The provision (Section 1083) would allow U.S. citizens to sue foreign governments involved in injury or death to Americans. In particular, it would allow U.S. citizens to sue Iraq, thus freezing Iraqi money in US banks, for the actions of the Hussein regime. Apparently the current Iraqi ambassador to the United States, Samir Sumaidy, raised objections to this particular section 10 days ago, prompting the Bush administration action (remember that this administration heavily criticized the Supreme Court for using foreign precedent to guide the outcome of a decision).
The Democrats in Congress have a case to be upset. A look at objections to this bill, issued in the form of a Statement of Administration Policy back in May does not say a thing about this objectionable section, again because the section was added back in September. There are no other SAPs issued after the section was added, and clearly the administration had enough time to pick it out as problematic and to get the Congress to drop it or qualify it--something the administration did not do.
In President Bush's "Memorandum of Disapproval," he mentions only this one section as the cause for the action. And then he muddies the water with whether this constitutes a pocket veto. He defends the pocket veto, but also notes that he is sending this disapproval message to Congress with his objections to "avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that this bill is being vetoed." So what gives?
First, if you are confused about the difference between the veto and the pocket veto, don't be alarmed. It seems that some elite reporters are confused as well. Take this piece from the New York Times Steven Lee Myers and David M. Herszenhorn, reporting from the "Western White House" in Crawford, TX. They write:
Because he used a pocket veto — allowing the legislation to expire 10 days after it was passed by the House — his decision cannot be overridden.
But that cannot be right, can it? If President Bush did not act on the bill "10 days after it was passed," then the bill would automatically become law, right? The Founding Fathers worried about a President who would refuse to act on legislation sent to his desk, in essence not doing anything with it and thus not taking the political heat for signing or vetoing a particular piece of legislation. Thus in Article I, section 7, the Constitution stipulates:
If any Bill shall not be returned by the President within ten Days (Sundays excepted) after is shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it...
A Pocket Veto involves the wording following the ellipses above:
...unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
If the Congress sends a bill to the President and then adjourns before the 10 day clock has expired, all legislation dies. This is done to protect the president. For the president to veto a bill, he must send it back to the Congress for their consideration. If no one was there to receive the bill, then Congress could run out the 10 day clock and the bill would automatically become law--hence the Pocket Veto provision. But Congress may adjourn yet leave instructions for those left behind regarding messages coming from the White House. In this case, Speaker Pelosi instructed "the House clerk to accept any communications--such as veto messages--from the White House during the month long break." And the Senate, it has not technically adjourned in order to prevent President Bush from making a recess appointment. Thus a Pocket Veto will not work, thus prompting Bush's discussion about a Pocket Veto, and then ending with a statement that his message should "leave no doubt that the bill is being vetoed."
Not the way the administration wanted to end this year, I am sure, particularly given just how mismanaged this has been (his team overlooked this provision--"While my Administration objected to an earlier version of this provision in previous communications about the bill, its full impact on Iraq and our relationship with Iraq has become apparent only in recent days."
Wow!
Saturday, December 29, 2007
Thursday, December 27, 2007
What A Let Down
President Bush was given a massive appropriations bill (so called "Omnibus" spending bill) that wrapped up this legislative session. Congress was unable to complete appropriations, and thus had to bundle what was left and send it to the president for his consideration. President Bush had previously threatened to veto this bill (HR 2764), but in the end he got what he wanted out of it (which is usually what happens with these type of bills).
What is also normal with Omnibus bills are a litany of challenges in the president's signing statement. For instance, H.J.Res. 2, which is an Omnibus bill for FY 2003 that contained 35 challenges. Even better is H.R. 2673, which is the Omnibus for FY 2004. President Bush's signing statement of H.R. 2673 contained 50 distinct challenges. So what a let down when we get to H.R. 2764. President Bush lightly slaps the Congress on the hand for not reducing earmarks (although he doesn't say how many earmarks were added by the administration). And then he adds the challenges. Now this is a guy who specifically picked out things the complain about in previous signing statements. For instance, the 2004 Omnibus had the following language:
The executive branch shall construe as advisory the provisions of
the Act that purport to: (1) direct or burden the Executive's conduct of
foreign relations, including sections 514, 531, 548, 557, 570, 571, 589,
610, and 618(b) of, and language relating to an agreement under the
heading ``Other Bilateral Economic Assistance, Economic Support Fund''
in, the Foreign Operations Appropriations Act; and sections 404, 612,
and 635 of the Commerce, Justice, State Appropriations Act and language
in that Act relating to World Trade Organization negotiations and United
Nations Security Council voting; (2) limit the President's authority as
Commander in Chief, such as language under the heading ``Andean
Counterdrug Initiative'' in the Foreign Operations Appropriations Act
and section 610 of the Commerce, Justice, State Appropriations Act; (3)
limit the President's authority to supervise the unitary executive
branch, such as section 610(3) of the Commerce, Justice, State
Appropriations Act, and sections 618 and 628 of the Transportation,
Treasury Appropriations Act and the language in that Act relating to
Office of Management and Budget (OMB) review of executive branch orders,
activities, regulations, transcripts, and testimony; or (4) restrict the
President's constitutional authority to make appointments, such as
section 604(c)(3)(B) of the Foreign Operations Appropriations Act and
subsections 112(a) and (d) of the Commerce, Justice, State
Appropriations Act.
This is what President Bush says in the current signing statement that hints of a challenge:
Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.
Blow me away!
It seems that the heightened attention to the signing statement combined with a change in party control of Congress have had a measurable effect on the use of the signing statement. Most notable is the drop in signing statements that contain challenges. Up to this bill, President Bush has issued just one signing statement that contained 11 challenges. Whether this effect is permanent remains to be seen, but clearly there is an effect. The next session--President Bush's final year in office--should bring less attention to what he is doing in office. First, the belief that a lame duck presidency means the president is impotent will work to his advantage as all eyes turn towards the next president. And second, a presidential election will drain press resources to follow how President Bush flexes executive power.
What is also normal with Omnibus bills are a litany of challenges in the president's signing statement. For instance, H.J.Res. 2, which is an Omnibus bill for FY 2003 that contained 35 challenges. Even better is H.R. 2673, which is the Omnibus for FY 2004. President Bush's signing statement of H.R. 2673 contained 50 distinct challenges. So what a let down when we get to H.R. 2764. President Bush lightly slaps the Congress on the hand for not reducing earmarks (although he doesn't say how many earmarks were added by the administration). And then he adds the challenges. Now this is a guy who specifically picked out things the complain about in previous signing statements. For instance, the 2004 Omnibus had the following language:
The executive branch shall construe as advisory the provisions of
the Act that purport to: (1) direct or burden the Executive's conduct of
foreign relations, including sections 514, 531, 548, 557, 570, 571, 589,
610, and 618(b) of, and language relating to an agreement under the
heading ``Other Bilateral Economic Assistance, Economic Support Fund''
in, the Foreign Operations Appropriations Act; and sections 404, 612,
and 635 of the Commerce, Justice, State Appropriations Act and language
in that Act relating to World Trade Organization negotiations and United
Nations Security Council voting; (2) limit the President's authority as
Commander in Chief, such as language under the heading ``Andean
Counterdrug Initiative'' in the Foreign Operations Appropriations Act
and section 610 of the Commerce, Justice, State Appropriations Act; (3)
limit the President's authority to supervise the unitary executive
branch, such as section 610(3) of the Commerce, Justice, State
Appropriations Act, and sections 618 and 628 of the Transportation,
Treasury Appropriations Act and the language in that Act relating to
Office of Management and Budget (OMB) review of executive branch orders,
activities, regulations, transcripts, and testimony; or (4) restrict the
President's constitutional authority to make appointments, such as
section 604(c)(3)(B) of the Foreign Operations Appropriations Act and
subsections 112(a) and (d) of the Commerce, Justice, State
Appropriations Act.
This is what President Bush says in the current signing statement that hints of a challenge:
Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.
Blow me away!
It seems that the heightened attention to the signing statement combined with a change in party control of Congress have had a measurable effect on the use of the signing statement. Most notable is the drop in signing statements that contain challenges. Up to this bill, President Bush has issued just one signing statement that contained 11 challenges. Whether this effect is permanent remains to be seen, but clearly there is an effect. The next session--President Bush's final year in office--should bring less attention to what he is doing in office. First, the belief that a lame duck presidency means the president is impotent will work to his advantage as all eyes turn towards the next president. And second, a presidential election will drain press resources to follow how President Bush flexes executive power.
Tuesday, December 25, 2007
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