Democrats say Bush can’t pocket veto defense bill

House Democrats and the Bush administration appear on the verge of a new constitutional fight over whether President Bush can pocket-veto the defense authorization bill.

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The White House on Monday said it was pocket-vetoing the measure, but a spokesman for House Speaker Nancy Pelosi (D-Calif.) said the president cannot use such a measure when Congress is in session. The distinction over whether the president can pocket-veto the bill is important because such a move would prevent Congress from voting on an override.

“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.

White House Spokesman Tony Fratto responded by saying that the president returned the bill in an appropriate way and is looking forward to working with congressional leaders to fix it when Congress returns this month.

The defense bill passed both the House and Senate with veto-proof majorities. Still, it’s unclear whether those majorities would hold, since House Republican leaders have called on Pelosi and Senate Majority Leader Harry Reid (D-Nev.) to make changes to the bill demanded by the president.

A pocket veto occurs when the president neither vetoes nor signs a bill within 10 days, excluding Sundays, after its passage while Congress is adjourned. When Congress is in session, any bill that the president does not act on becomes law, according to the Constitution. The Senate has been in pro forma session over the last two weeks, while the House has been out of session.

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.

He said Congress should move quickly to send Bush a new defense bill with the demanded changes after it returns in January, and noted the White House had taken the “additional step” of returning the bill to the House with a message of disapproval.

Bush opposes parts of the bill that would allow lawsuits against Iraqis for acts committed when Saddam Hussein was in power to move forward in U.S. courts. Those lawsuits could slow down the Iraqi government’s reconstruction efforts, Bush has said.

Pelosi and Reid released a statement last week decrying Bush’s announcement that he intended to veto the bill, saying that it would delay the disbursement of money that troops needed. They also noted that the White House should have raised its objections to the bill before Congress had passed it.

In announcing the president planned to veto the bill last week, the White House did not specify it intended to use a pocket veto.

Louis Fisher, a constitutional scholar at the Library of Congress, said that the president is inviting a constitutional fight in trying a pocket veto.

“The administration would be on weak grounds in court because they would be insisting on what the Framers decidedly rejected: an absolute veto,” Fisher said.

True pocket vetoes are available only when Congress is away for months and unable to vote on an override, he said.