Help me out here everyone







Hearing some rumors and I need some type of confirmation…

Email from reader…

The word is out that Pres. Obama’s pocket veto of the Digital Robo-Signing Act was actually a trick.  Sen. Harry Reid didn’t actually adjourn the U.S. Senate.  The Senate has been kept in session by a little understood ruse and the bill will become law tonight at midnight without the President’s signature.

The big banks will file suit after the election to have this bill declared to be law.

Article I, Section 7 of the U.S. Constitution seems to support this view.

Some drunken bankers were already bragging about this an some major news outlets, including Fox News have reported on this.

I do not believe tonight at midnight is the deadline for this as stated in the email above.

I believe it is Tues Oct 12th. (10 days from when presented not including Sundays)

I do not have a warm and fuzzy feeling about this because the session is still open.

See Senate Light is Green and Says “In Session”

Did some research and this is what I have come up with so far…

Some Background info.

A pocket veto is a legislative maneuver in United States federal lawmaking that allows the President to indirectly veto a bill. The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays) while the United States Congress is in session. From the U.S. Constitution Article 1, Section 7 states:

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.

If the President does not sign the bill within the required time period, the bill becomes law by default. However, the exception to this rule is if Congress adjourns before the ten days have passed and the President has not yet signed the bill. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. If the President does sign the bill, it becomes law. Ignoring legislation, or “putting a bill in one’s pocket” until Congress adjourns is thus called a pocket veto. Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden (but see below). James Madison became the first president to use the pocket veto in 1812.[1]

Summary | Full Text
Occurred: Introduced Oct 14, 2009
Occurred: Referred to Committee View Committee Assignments
Occurred: Passed House Apr 27, 2010
Occurred: Passed Senate Sep 27, 2010
Not Yet Occurred: Signed by President
Having passed in identical form in both the House and Senate, this bill now awaits the signature of the President before becoming law. [Last Updated: Oct 1, 2010 6:55AM]
Last Action:
Sep 30, 2010: Presented to President.
See the Related Legislation page for other bills related to this one and a list of subject terms that have been applied to this bill. Sometimes the text of one bill or resolution is incorporated into another, and in those cases the original bill or resolution, as it would appear here, would seem to be abandoned.
Apr 27, 2010: This bill passed in the House of Representatives by voice vote. A record of each representative’s position was not kept.
Sep 27, 2010: This bill passed in the Senate by Unanimous Consent. A record of each senator’s position was not kept.


Now, I just checked with someone who did pay attention in this class and this is what I received…

Congress is in pro forma – meaning that they are conducting meetings but no formal business is addressed in the meetings.  Pro forma can be used to prevent the president from exercising his pocket veto.

I am thinking we have not yet won this battle – we still need to continue with the pressure.  the president has 10 days (not counting Sundays) to either sign the bill, veto the bill, or return the bill unsigned.  If the session is ended and a bill is returned unsigned then it fails.  However, with Congress in pro forma, they are still there and they can pass the unsigned bill.
This is really a very sticky situation we have right now.  The president received the bill on Sept. 30 + 10 days = Oct. 12.

Everyone is reporting that Congress has adjourned – but they really haven’t – they are in pro forma session.  If they continue in pro forma through Oct 12, then the prez has to veto the bill – otherwise it will be law.

One last thing – back in December, the president faced a similar situation with the pocket veto.  What he did then was to return the bill unsigned with a Memorandum of Disqualification basically stating that he disagreed with the bill he vetoes the bill.

I have not seen any reports that the president has done the same thing this time.

Did some more digging and came up with the White House press release…

MR. GIBBS:  It’s been hours.  Good afternoon.  Before we get started, let me just confirm for you all what a number of you are reporting and some of you are seeing.

The President will not sign H.R. 3808.  Our concern is unintended — the unintended consequences on consumer protections, particularly in light of the home foreclosure issue and developments with mortgage processors.  So the President is exercising a pocket veto, sending that legislation back to Congress to iron out some of those unintended consequences.

Q    You can do that even though the pro forma session is going on in the Senate?

MR. GIBBS:  It’s our understanding, yes.

Q    I’m sorry, what bill is that?

MR. GIBBS:  H.R. 3808.

Q    I don’t know it by number.  (Laughter.)

MR. GIBBS:  Well, I don’t know it by title.  (Laughter.)

Q    We’re at an impasse.

Q    Interstate recognition of notarization —

Q    It’s the foreclosure —

MR. GIBBS:  It’s the IRON Act.  It has to do with notarizations — out-of-state notarizations for financial documents.
Q    Robert, on that bill that would make it harder for homeowners to challenge foreclosures, why not just a straight veto of that?  Why do a pocket veto? And also, were you guys blindsided by this?  I know you said you had meetings on this today.

MR. GIBBS:  No, again, we’ve heard from — let me check on the second one with counsel.  On the first one, Caren, I would say we have heard from officials around the country about the concern that they have about the possible unintended consequences of this legislation, certainly in light of what we’re seeing in the mortgage processing.

So out of an abundance of caution and to ensure that those unintended effects don’t harm consumers, the President will send the bill back, and believes that Congress did not intend for those unintended consequences to be in the legislation, and we’ll — and we will as an administration work with Congress to fix this.

Q    So you talk with people on the Hill and you think maybe they’ll send it back in another form?  Is that —

MR. GIBBS:  I don’t have an update on that.  I know they were certainly informing the Hill of the President’s action and certainly we’ll work with the Hill in whatever capacity we need to to fix any legislation so that it doesn’t complicate the process.


And it does not answer much.

So I am ready for my lashings if I am totally off on this, but could not let it go with asking the question:


Is it possible that the pocket veto is ineffective at this point and will this become law by default if the session stays open past Tuesday without any further action on the bill?





I am not buying it…

Is this a ploy claiming pocket veto then after the elections they come out and say, we have consulted with legal counsel and a pocket veto was not legal because the senate was still in session and since the president did not actually veto the bill, it became law without his signature by default, too bad so sad, sorry…




HR 3808, Interstate Recognition of Notarization Act 

EMAIL: White House

Comments: 202-456-1111




The White House

Office of the Press Secretary

For Immediate Release
October 08, 2010

Presidential Memorandum–H.R. 3808

It is necessary to have further deliberations about the possible unintended impact of H.R. 3808, the “Interstate Recognition of Notarizations Act of 2010,” on consumer protections, including those for mortgages, before the bill can be finalized. Accordingly, I am withholding my approval of this bill. (The Pocket Veto Case, 279 U.S. 655 (1929)).

The authors of this bill no doubt had the best intentions in mind when trying to remove impediments to interstate commerce. My Administration will work with them and other leaders in Congress to explore the best ways to achieve this goal going forward.

To leave no doubt that the bill is being vetoed, in addition to withholding my signature, I am returning H.R. 3808 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval.


October 8, 2010


The last 24 hours has been a very interesting crash course on how this all works and it made me realize how ignorant I am on these matters.

Shame on me…

Anyway, I dug a little more to make sure that we would all be okay with the language in the release above since it still mentioned the pocket veto.

It looks like we are in good shape and I would like to personally that the President for reacting to our concerns.

Here is what I found that makes me think the bill is  definitely vetoed but mark my words, this still may be challenged in a court of law.

Please chime in with your thoughts…


Avoiding a Constitutional Conflict

Consider this a lesson in your graduate course of How a Bill Really Becomes a Law (or doesn’t, in this case).

On December 30th President Obama vetoed his first bill.  Before the annual appropriations bill to fund the Department of Defense was enacted into law, Congress had passed a “Continuing Resolution” (CR) to provide funding for continued Pentagon operations.  Once the Defense approps bill had become law, the CR was no longer needed.  So the President prevented it from becoming law by vetoing it.  To my knowledge there was no policy dispute about the need to do this – everyone agreed that the CR was superfluous.

But how the President vetoed it is interesting, if you care about the details of how the Constitution works in practice.

To understand the conflict and how it was avoided, you need to understand how a “normal” veto and a pocket veto work.

First you need to understand how a “normal” veto works, usually called a return veto:

  • The bill is passed by both Houses in identical form.  This is the engrossed bill.
  • The engrossed bill is then enrolled:  the House (or Senate) Clerk assembles the actual parchment copy, which is then signed by the Speaker of the House (Pelosi) and the President Pro Tempore of the Senate (Byrd).  For this example let’s assume the House Clerk.
  • The House clerk then sends the enrolled bill to the President.  Someone from the House Clerk’s office gets in a car and drives the bill to the White House and gives it to the Executive Clerk who works for the President.  The technical term is that the bill is presented to the President.  (“Presented” is in Article I, Section 7 of the Constitution.)
  • The President decides to veto it.
  • He instructs his Executive Clerk to return the bill to the originating House of Congress (in this case, the House of Representatives) “with his objections.”  In this case the Executive Clerk returns it to the House Clerk, with a Memorandum of Disapproval from the President.
  • The Congress can then try to override his veto (if they so choose).  To do so they need 2/3 of the House and 2/3 of the Senate to override the veto.

The cool part of a return veto is that the President doesn’t ever have to see or touch the actual bill papers.  There’s no veto stamp, and he doesn’t sign the memorandum of disapproval.  He can do it all by phone.  His Executive Clerk can handle the paperwork without the President’s signature.

This contrasts with the traditional process for signing a bill into law, for which the President must physically have the bill in front of him.  This sometimes involves putting a staffer onto a plane to transport the bill to him (say, to Hawaii) before the 10-day deadline expires.

OK, let’s turn to a pocket veto. Here’s the relevant sentence, again from Article I, Section 7 of the Constitution:

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.

So the President doesn’t (normally) even have to sign a bill for it to become law, although he almost always does.  The tricky part comes when Congress had adjourned.  Let’s use the CR as our example:

  • The House passed the CR (House Joint Resolution 64) by voice vote on Wednesday, December 16th.  It passed the Senate by unanimous consent on Saturday, December 19th.
  • On Saturday, December 19th, the House Clerk enrolled the CR and presented it to the President.
  • The House adjourned for the year on December 23, and the Senate on December 24th.
  • The 10-day clock expires on December 31st, since you don’t count Sundays.  If the House is adjourned then to “prevent its return,” then the bill does not become law and we say the President has “pocket vetoed” the bill.

Now that we understand both a return veto and a pocket veto, let’s look at the Constitutional conflict.  Please note that when I say “Congress” below, I am talking about the institutions of the Legislative Branch – the House and the Senate.  Partisanship is in this case irrelevant.  This conflict is about tension between the Legislative and Executive Branches of government, not between Republicans and Democrats.

Here’s the sentence again, which the relevant section in bold:

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.

Q:  If the House of Representatives adjourns but leaves the House Clerk in town, does this “prevent the return” of a bill and mean the President cannot pocket veto it?

When the Constitution was young, there were long periods when Congress was not in session, so there was no one to receive a returned bill and convene Congress for a veto override vote.  This was the birth of the pocket veto.

The Legislative Branch view is that the House of Representatives has appointed the Clerk of the House to act as its agent to receive Presidential messages.  Since the House Clerk and Secretary of the Senate are always around, there is always a way for the President to return a bill with a resolution of disapproval, even if Congress has adjourned.  Thus the Legislative Branch view is that a pocket veto is no longer possible. There’s an exception to this for when Congress adjourns sine die, meaning at the end of a Congress, which happens late in every even-numbered year.  But the Legislative Branch view is that intrasession pocket vetoes are no longer possible, since the President can return a bill even when Congress has adjourned for several weeks (say, during August recess or at the end of an odd-numbered year).

The Executive Branch view is that even if the House of Representatives appoints its Clerk as its agent to receive an objected bill, the House Clerk is not the House, and the Constitution requires the bill to be returned to the House, not to an agent of the House.  If the House has adjourned, then Congress has by their adjournment prevented the return of the bill, and the pocket veto is operable.

These different views create a risk that an intrasession Presidential pocket veto might be challenged by the Congress in court.  Congress might argue in court that the CR (for example) became law after 10 days, even though the President did not sign it.  That would be a silly policy outcome, but the Constitutional dispute can and should be separated from the policy question of what the bill would do.

The Executive Branch would rather not provoke this fight, so they use a belt-and-suspenders approach.  The President pocket vetoes the bill and he return vetoes it.  The President pocket vetoes the bill and does not sign it into law during the 10 days allowed him by the Constitution.  He also returns it to the originating body of Congress (in this case the House) with a statement of his reasons for disapproving it – a return veto.  The President’s statement says that he is pocket vetoing it (the Executive Branch view), and he takes all the steps necessary to return veto it.  The term of art is a pocket veto with protective return.


The enactment of H.R. 3326 (Department of Defense Appropriations Act, 2010, Public Law 111-118), which was signed into law on December 19, 2009, has rendered the enactment of H.J.Res. 64 (Continuing Appropriations, FY 2010) unnecessary. Accordingly, I am withholding my approval from the bill. (The Pocket Veto Case, 279 U.S. 655 (1929)).

To leave no doubt that the bill is being vetoed as unnecessary legislation, in addition to withholding my signature, I am also returning H.J.Res. 64 to the Clerk of the House of Representatives, along with this Memorandum of Disapproval.

December 30, 2009.

The result:  the Legislative and Executive Branches agree that the bill has been vetoed, but for different reasons.  The Congress says the bill has been return vetoed.  The Executive Branch says the bill has been pocket vetoed.  Since both agree the bill has been vetoed, there’s no opportunity for a court challenge.

Conflict avoided.

Only time will tell…

Comments, thoughts, suggestions?