Friday, December 28, 2007

No third star yet

Casey Kasem's famous sign off line was, ""Keep your feet on the ground, and keep reaching for the stars." That third star is still out of reach for the Judge Advocates General. The President indicated today that he is vetoing the DOD Authorization bill, which includes the provision giving the Judge Advocates General a third star. The President's disapproval of the bill is the result of a provision potentially making the Iraqi government financially liable for torts committed by Saddam Hussein's government. In January, Congress will have a chance to either override the veto or pass the legislation in an altered form, as discussed in this WaPo piece.


Christopher Mathews said...

The President has indicated that he will not formally veto the authorization, but will withhold his signature. Because the bill originated in the House, and because that chamber (unlike the Senate) is not in session, this amounts to a so-called "pocket veto" of the legislation.

I'm not sure the Congress can override a pocket veto. Anyone out there know the answer?

Dwight Sullivan said...

Outstanding point, JMTGst. According to this Georgetown Law Journal note on intersession pocket vetoes, Congress would have to pass the legislation anew in the next session and then override a new veto. Note, The Intersession Pocket Veto and the Executive-Legislative Balance of Powers, 73 Geo. L.J. 1185 (1985).

The note says that such a scenario has never occurred. (Of course, the note was written in 1985, so it's possible that it's occurred in the two decades since.)

Here's another question. According to news media reporting, the President would not sign the FOIA amendments in the OPEN Government Act of 2007, S. 2488, but that the bill would become law without his signature. Was that reporting wrong? Or because that bill originated in the Senate and the Senate is technically not in recess to eliminate the possibility of recess appointments, would that bill become law without the President's signature?

The President's statement about the DOD Authorization Act said he was returning the bill to the House to avoid litigation over whether the bill had actually been "pocket vetoed." While that will eliminate any uncertainty over the status of the DOD Authorization bill, given the peculiar legislative posture at the moment, I'm not sure he will succeed in avoiding a constitutional case over the status of some bill passed at the end of the last session that remain unsigned 10 days after it was presented to the President.