Via Daily Kos comes a story of a president who doesn't respect the legislature in his country.

The story is of course about George W. Bush. Most of Congress left for the Christmas holidays, but they're still in session. Every day, a member of the House and the Senate conduct pro forma sessions that sometimes last less than a minute. No business gets conducted at a pro forma session, but Congress is still technically in session. This has been occurring to prevent Bush from making temporary recess appointments to federal benches. Recess appointments are emergency presidential appointments that can be made when Congress is out of session. They do not require Senate confirmation. A recess appointment lasts until the next Congress convenes.

The pro forma sessions have had the advantage of preventing a "pocket veto." When a president receives a bill from Congress, he can do nothing to it in addition to signing it or vetoing it outright. If, after ten days of sitting on the president's desk (Sundays excepted), Congress has not adjourned, then the bill becomes law. However, if Congress adjourns during those ten days, then the bill is pocket vetoed. (See U.S. Const. art. I, § 7.)

President Bush has refused to sign into law H.R. 1585 [PDF], a defense spending bill that contains a provision that would allow victims of Saddam Hussein to make claims in Iraqi courts. The bill contains other good provisions that Support Our Troops, so the president does not want to outright veto it or, perhaps, draw attention to the nefarious reasons why he's vetoing it. Neither does he want to sign it into law with that provision in place. If he does nothing, it would constitute a pocket veto.

At least, in reality it would. President Bush lives in a universe of his own in which he is the "decider." He has reserved for himself, in various signing statements, powers of interpretation that are traditionally (and legally) given to other people. Now, he has decided that Congress's pro forma sessions don't constitute being in session.

Furthermore, Bush has immediately defined terms in the debate by suggesting that, if Congress were to take him to court to have the court determine that he's lost his mind, such litigation would be "unnecessary." This is the latest in a string of statements he has made that are contemptuous of Congress attempting to exercise any power that involves regulating him, his agenda, or his office (even though such powers are explicitly granted to Congress in the Constitution).

As justification for his decision, he cites The Pocket Veto Case, 279 U.S. 655 (1929). (And, yes, the real name of this case is "The Pocket Veto Case.") At issue in 1929 was whether or not "adjournment" in the Constitution meant any interim adjournment of Congress (including a recess), or the final adjournment of a Congress. The Supreme Court disagreed that "the word 'adjournment' as used in the constitutional provision refers only to the final adjournment of the Congress. The word 'adjournment' is not qualified by the word 'final'; and there is nothing in the context which warrants the insertion of such a limitation."

Furthermore, as to whether or not an adjournment of Congress prevents the president from returning the bill, the Supreme Court said that it did. Since the House from whence it came was not in a position to receive his "objections" and "enter the objections at large on their journal," there would be no way for the president to fulfill the obligations required of him to satisfy a completely constitutional veto (no Congress in session means no one to receive his objections and no one to enter anything into a journal). This is the definition of a pocket veto.

Even though he cites The Pocket Veto Case, the issue at hand now has nothing to do with the definition "adjournment" and whether such adjournment prevents the president from "return[ing]" the bill to Congress. It has everything to do with whether or not Congress has adjourned. It would be difficult to prove that Congress is not currently in session, since it is clearly in session as far as all definitions go. (Were it not in session, then the president would be able to make those recess appointments.) Furthermore, he claims that he is vetoing the bill, and yet at the same time, he claims that he cannot -- and is not -- vetoing the bill outright. This makes no sense.

Were this to go to a court, I hope that any competent judge would rule that Bush's refusal to veto the bill (and his subsequent, explicit invocation of the "pocket veto") does not constitute an actual veto. Moreover, it would be hard for such a judge to rule that Congress is not in session, pro forma though it may be. One of the commenters at Daily Kos suggested that Democrats would relent -- as they always do, for some reason -- instead of actually filing suit. I really hope this doesn't happen. Democrats really should stop letting themselves be beaten up and come back for more. This is like watching a Lifetime movie (except, in the Lifetime movie, the woman usually ends up killing the abusive husband).