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Pocket veto for 2008 NDAA?

Jason Perry

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In a nutshell, the 2008 NDAA was presented to the President on December 19th. He had ten days to sign or it becomes law...unless Congress is not in session. If Congress is not in session, the unsigned bill is "pocket vetoed."

Since the Congress can't meet to override the veto since it is adjourned, a pocket veto is final. (The Senate has been in session but the House has not). There are many Consitutional law issues here and not many cases (a 1929 case is the most important one to deal with this question, Bands of the State of Washington v. United States). This may resolve without heading to the Supreme Court if Congress passes the bill again (there was certainly enough support to make this a plausible outcome).

So, we may not have the benefits of 2008 NDAA just yet. Also, the 3.5 percent raise for military personnel is part of this bill. Only .5 percent is stripped away as 3 percent was previouly approved.

Stand by for more to follow....

http://www.bloomberg.com/apps/news?pid=20601087&sid=a8Gw1aYKPGwg&refer=home

http://news.yahoo.com/s/ap/20071228/ap_on_go_pr_wh/bush_12;_ylt=ApjQ8gngfvTsRiRv4jB5NL0Gw_IE
 

Jason Perry

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As it stands now, it appears that the pocket veto will be effective. It is possible that Congress may fight this, but a legislative fix is in my opinion the more likely resolution.

If you followed the President's stated objections, he found the provisions of the 2008 NDAA contained in Sec. 1083 regarding lawsuits against state-sponsors of terrorism to be objectionable. So, when Congress reconvenes, it may be a relatively quick fix by dropping the provisions of Sec. 1083. However, it is possible that there is some delay. Remember, Congress can pass the same bill, and then force a veto, then attempt to override. Or they can strip out the parts of the bill at issue. I believe that much will depend on the votes that are out there in support of the bill as it is currently written and the ability of the Congressional leadership in both parties to keep rank and file members in line.

The House of Representatives is back in session on Jan. 15, with the Senate following a week later on Jan. 22. At the earliest, it appears that it will be the end of January until there is resolution on this bill. Let's hope it is resolved quickly as this bill improves the Physical Disability Evaluation System case processing.
 

Jason Perry

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A few scenarios

As it stands now, the President has declared that he has "pocket vetoed" the 2008 NDAA. So what happens next?

I have read some newspaper and web articles about some in Congress saying this was illegal or ineffective. But unless there is some action taken, the veto will stand. What sort of action? Well, I suppose one scenario would be if when Congress resumes in mid-January, the leadership could potentially transmit the bill to the Archivist of the United States for publication. This could happen either with or without a veto override vote. If the Archivist publishes the bill, then a suit to block this would have to come from the White House. This would be a really interesting outcome, because all that money authorized would be available and the White House would be in the position of arguing against the legality of the bill at the same time needing to accept the funding. If this comes to pass, this would surely be a fast track US Supreme Court case.

I still think that none of this is likely. A political solution is in my opinion the quicker and more likely outcome. It is probably the better outcome, too. The House will take up this bill, re-introduce it and (probably with a lot of behind the scenes vote-counting and the Majority and Minority Whips doing some strong arming) figure out whether there is will to strip out the provision at issue, Sec. 1083, and whether there are likely enough votes to push through an override if the provision remains intact. If there are not enough votes to force an override, then I think the provisions will be dropped. When the Senate returns Jan. 22nd, look for them to quickly take up this issue as well with a similar calculus being performed to decide whether the provision that the President objected to survives or not.
If there is enough support for the bill as is, it will be passed again. If not, it will be stripped out and a new version of HR 1585 (the 2008 NDAA) will pass in otherwise substantially the same form. I sincerely hope this is so. There are so many provisions in this bill that help wounded Servicemembers and Veterans. And an expansive review of the provisions will simply take too much time. This bill is not perfect, but it is a step forward.
 
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