Tag Archives: government

Pocket Vetoing

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Consider this scenario: in 2022, Republicans sweep to veto-proof majorities in both the House and Senate. (I agree, but work with me here.)

Let’s say that one of the bills that Republican Congress passes—late in the year after much debate—is either a tax reduction bill that permanently reduces even further both corporate and personal income taxes or (especially after much debate) a spending cut bill that cuts actual spending (not just slows increases) and that includes material reform of Social Security and Medicare.

Let’s say further that one of those bills is presented to a President Joe Biden right before Congress adjourns (not merely recesses) for the year-end holidays, an adjournment that will last for more than 10 days (as even many Congressional recesses do).

Biden doesn’t like the bill, never-minding its general popularity among Americans, or that it was passed by a veto-proof Congress. He can’t veto it outright, or it will simply be passed over his veto. So he pocket vetoes it—he takes no action at all.

Here’s what Article 1, Section 7 of our Constitution says:

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.

Leo Fisher has argued that such a “veto” wouldn’t hold up in court (in fact, the courts have never ruled directly on the matter) because this would be an absolute veto—Congress having no opportunity to attempt to override it as otherwise specified in our Constitution—and so would go directly against the Constitution’s authors’ intent. This, he intimates, flows from the otherwise not-signing for 10 days making the bill law, or the veto of the bill within those 10 days with an explicit Congressional override making it law that are provided for in the immediately prior sentences:

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…. 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.

Fisher’s argument fails because of that categorical and uncaveated clause: unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. That’s precisely an absolute veto, and it was written into our Constitution by its authors.

Thus, it strikes me that the matter is quite clear on two grounds (and yes, I’m aware of conflicting Supreme Court rulings that hint at the matter). One is that when Congress is adjourned, it is explicitly not in session, as opposed to merely taking a break for a bit, which is what a recess is. When Congress is not in session, it cannot receive anything—it’s simply not available. That decision creates the condition for an absolute veto.

The other ground is this: it’s easy for Congress to remain in session for the extra period needed to consume those 10 days within which a President must explicitly veto a bill and return the veto to Congress. By adjourning during those 10 days and not returning before the 10 days are expired, Congress is consciously creating the condition for a pocket—absolute—veto.

Clinton-2 vs Obama-3

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That’s the hope expressed by Phil Gramm and Mike Solon in their Tuesday op-ed in The Wall Street Journal.

By electing a divided government, Americans may get what they appear to want: a Biden first term that’s more like Bill Clinton’s second term than a third term for Barack Obama.

That is in no way a done deal. The current situation is not at all comparable to the Clinton situation. Biden’s handlers have no inclination whatsoever to move off their far-left ideology, much less the far-left policies they intend for enacting that ideology.

Nor have they any willingness to compromise, as Ocasio-Cortez has made blatantly clear.

The best we can hope for is a Republican-majority Senate and enough party unity to say “No” for four years.

‘Course a gridlocked government isn’t a bad thing.

WaPo Contempt

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The Washington Post is at it again. Abolish the electoral college, its editors demand. And they thereby display the same contempt for ordinary Americans, our Constitution, and our federal republic structure as did Herb Croly, Woodrow Wilson, and more recently Ezra Klein, Barack Obama, Chuck Schumer, and Nancy Pelosi, among a long list of today’s Leftists and Progressive-Democrats.

The electoral college, whatever virtues it may have had for the Founding Fathers, is no longer tenable for American democracy.

After all,

Right now, our presidential elections are conducted by 51 separate authorities, each with its own rules on registration, mail-in balloting and more. Each state counts its own ballots, and each decides when recounts are needed.

You bet. That’s right there in that pesky Constitution, because federation. That’s where the individual States, by design, are nearly on a par with the central government. That’s so a far away, remote government cannot rule the roost with its one-size-fits-all diktats. Those pesky States just keep getting in the way of Progressive-Democrats’ need to implement their Know Better policies. Absolute control from the center would make that so much more convenient. Here’s Congresswoman Alexandria Ocasio-Cortez on the need for a Progressive-Democrat majority, reigning from DC:

[Jake Tapper, interviewing Ocasio-Cortez]: Are you going to work with more moderate Senate Republicans to try to pass something in the House that can get through the Senate?
[Ocasio-Cortez]: Well, I’m going to be spending my next couple of months doing everything that I can to extend help and offer support…that we secure a Democratic Senate majority, so that we don’t have to negotiate in that way[.]

Back to WaPo‘s need to clear away the obstacles to Leftist control of the promise of American life.

Small states already have disproportionate clout in our government because of the Senate, in which Wyoming’s fewer than 600,000 residents have as much representation as California’s 39.5 million.

With the Electoral College having far more popular representation than the Senate, surely, these wondrous exemplars of what passes for journalism will be demanding proportional representation in the Senate, too. Truly equal representation gives the dinky States, those locales too small to be worthy of notice, ‘way too much representation.

Some Editors Don’t Get It

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The Wall Street Journal‘s Editorial Board, in its Friday edition, ran a piece strongly decrying the Left’s and their Progressive-Democratic Party’s shrill attacks on Justice Sam Alito for his effrontery in decrying their attacks on freedom of speech and freedom of religion. In those personages’ eyes, Alito behaved despicably in two ways: defending those two freedoms, and any others, is far too political a thing for any mere Justice to do. And he did it in front of that dastardly bastion of individual liberty, the Federalist Society.

Then the editors deprecated their otherwise excellent piece with this, near the end of their editorial:

The American judiciary, in its best tradition, balances majoritarian demands with the constitutional rights of weaker and less politically powerful groups, whether they are socialist or conservative.

This is a very large misunderstanding. The American judiciary, in its best tradition—if only rarely honored—doesn’t balance anything. It acts on the text of the Constitution and the statute(s) before it in a case.

Any balancing is a political action legitimately carried out only by the political branches of our American government, the members of which are elected—and replaced—by our nation’s sovereign political aggregation, We the People.

Misunderstanding the Court’s Role

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Here, the misunderstanding is of the role our court system, including our Supreme Court, plays in our elections.

Recall that President Donald Trump’s campaign lawyers have filed a number of lawsuits challenging various States’ vote counting procedures. In particular, the lawyers have filed, in Federal court, alleging that

some of the state’s [Pennsylvania’s] actions, and particularly the exclusion of Republican poll-watchers during the counting of hundreds of thousands of mail-in ballots, violated federal constitutional requirements.

The complaint can be read here. (Aside: this is a separate complaint from one also filed that Pennsylvania’s Executive Branch officials altered the State’s vote handling procedures in violation of our Constitution’s Article I, Section 4, and, from that, in violation of established Pennsylvania election law (including an explicit decision last summer by Pennsylvania’s legislature to make no changes to the State’s election law).)

American Thinker‘s James DeLong, at the link, provided a sound analysis of the legal strategy underlying the lawyers’ move. But DeLong went off the rails at the end of his piece.

Everyone in the legal world assumes that the justices, bruised by the excoriation the Court has received over Bush v Gore (even though the result was right), would never put itself in the position of reversing the apparent results of a presidential election.  This assumption is the reason for the Democrats’ efforts to create an irresistible bandwagon effect, but the president’s lawyers may have out-maneuvered them.  The justices may have no choice except to decide the election, one way or the other, and to be put to the choice of reversing the media-claimed results or ratifying massive fraud.

No, the Bush Court most assuredly did not revers[e] the apparent results of the Bush-Gore election contest. That Court merely upheld the choice of the citizens of Florida, which citizens decided for themselves and joined with the decision of the aggregated citizens of the nation, who our President would be.

Similarly, our courts, including most likely our Supreme Court, will not be deciding the current election with their rulings on the Pennsylvania case or any other cases that come before them.

On the contrary, our courts—including our Supreme Court—will only be upholding and enforcing the decision of us American citizens.