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HR3808’s Resurrection Seems More About Separation of Powers

Now, let’s look at something else that has everyone scurrying today. Here’s what’s on tap in the House of Representatives, right from the Office of the Majority Leader.

Disposing of the President’s Veto of H.R. 3808- Interstate Recognition of Notarizations Act of 2010 (Rep. Aderholt – Judiciary)

We all probably remember what HR 3808 is. That’s the bill that would allow out-of-state notarizations to be recognized in state and federal courts. It would also allow for e-signatures.

Now, there was a substantial debate when this popped up in October over whether this would actually make it more difficult for public interest lawyers to challenge the underlying documents in foreclosure fraud. That concern was wiped away when the President announced he wouldn’t sign the bill. But when he did, he tried to pull off a little trick. He said he “wouldn’t sign” the bill, making it sound like a pocket veto. But he also said he would return the bill to the House, leaving no doubt that the veto was legitimate.

Why do this? Well, the pocket veto is actually a shaky concept, legally speaking. Technically it’s available to a President, but it’s an effort to perform a veto that cannot be overridden with a Congressional vote. That isn’t entirely constitutional. Pocket vetoes were meant for times when Congress was out of session for a long period, at least over a month. That was true back in October, but the Senate was holding pro forma sessions at the time. David Waldman’s better at explaining this than anyone, so here he is:

Looking back at George W. Bush’s 2007 claim of a pocket veto, the situation there was that a House-originated bill met with Bush’s disapproval at a time when the House was adjourned, but the Senate was holding pro forma sessions — exactly as is the case with H.R. 3808. Thing is, Bush actually returned the bill as well, just to be sure it wasn’t enacted, but he claimed that it was a pocket veto anyway, because he wanted to prevent any chance at an override.

By what logic did Bush claim a pocket veto if he returned the bill? He said that the House, which originated the bill, was in adjournment and that Senate pro forma sessions didn’t count for the purposes of determining if the Congress was in session. That’s a view rejected at the time by Speaker Pelosi’s office:

“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.

As I understand the language in the Majority Leader’s statement (“Disposing of the President’s Veto”), the Speaker wants to deny the fiction that the President can just say something’s a pocket veto to avoid an override, while making it an actual veto, which can draw an override vote under the Constitution. This is what Pelosi rejected under Bush and she’s doing the same thing under Obama.

So this seems to be more about separation of powers than anything. It’s overlaid with a lot of very real concerns about bankster bailouts and indemnification for fraud, but this vote looks like a formality to me, so Congress asserts its right to deny the President an absolute veto.

That said, if you think it’s a real problem, by all means, call your Representative and tell them to vote against the bill.

UPDATE: It’s possible for this to never get a vote. The House could just move to table consideration. They still get a say in the matter, and the bill doesn’t actually get a roll call. Not sure exactly what the House has planned, but that’s an option.

The bill shouldn’t pass even if it wasn’t a back-door way to make it harder on lawyers defending foreclosure victims, by the way. Just on a “Cui bono?” basis, an industry party to a major scandal should not be rewarded with an opening of their markets and an easing of their processes.

UPDATE II: The Wall Street Journal has a piece on this, which doesn’t mention pocket vetoes or separation of powers at all, showing that there are two political conversations in this country, one in the media, and then the actual political conversation.

UPDATE III: As I suspected, the vote to dispose today is entirely procedural and a way to express the prerogatives of the Congress on pocket vetoes. It’s not going to pass.

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David Dayen

David Dayen