Understanding the framework of your government, and how twisted it has become

[kscarbel2]

President Obama’s recent vetoes were unconstitutional. Congress should sue him.

Robert Spitzer / The Washington Pose / December 30, 2015

There's a pocket veto, and there's a regular veto. Presidents don't get to combine them.

President Obama’s vetoes earlier this month of two bills that would have blocked administration efforts to blunt climate change surprised no one. The vetoes came after Congress passed resolutions that even Republican leaders admitted were largely symbolic — precisely because the GOP lacks the votes to override Obama.

By choosing an unorthodox and unnecessary method to exercise his veto, though, Obama may have handed a major victory to the Republicans by providing them with a way to challenge the constitutionality of his action. Here’s how.

The Constitution provides the president with two veto options: the regular or return veto, where the president returns the bill to Congress with his objections; and the pocket veto, which kills the bill without returning it to Congress. Presidents like the pocket veto better for the obvious reason that it is absolute, with no possibility of veto override, but the Constitution does not allow presidents to pick and choose the kind of veto they wish to use. The regular veto is unconditional as long as the bill can be returned. But the pocket veto, under the terms of Article I, Section 7, has two conditions for its use: Congress must be adjourned, and bill return must be “prevented.” These two linked conditions in turn acknowledge the existence of adjournments when bill return is possible.

In fact, the return veto is actually preferred by the terms of the Constitution, as was the clear intent of the Framers (Founding Fathers). We know this because at the Constitutional Convention, they repeatedly and emphatically rejected a monarchical absolute or non-override veto for the president. The right of Congress to have a final chance at vetoed bills was essential to the checks and balances system they created.

Yet the pocket veto is absolute in its effect, because the bill dies without return to Congress, so how is its presence in the Constitution explained? The answer is that the pocket veto was created to prevent Congress from ducking a veto by passing a bill and quickly adjourning to prevent the president from returning the measure. Without the pocket veto, an objectionable bill would simply become law after ten days, whether the president signed it or not.

So how can a regular veto be used if Congress is not in session, which it is not, since the first session of the 114^th Congress ended Dec. 18? Simple: Each house designates legal agents to receive veto messages and other communications. This routine mechanism has been used thousands of times by Congress for decades during long weekends, vacations and breaks, just as the White House receives bills from Congress on behalf of the president when he is absent or indisposed. Both procedures have met constitutional muster. As the Supreme Court said in 1938, the “Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.”

In his two vetoes, Obama issued a so-called “protective return pocket veto,” whereby he announced a pocket veto and titled his veto message “Memorandum of Disapproval” (the name for a pocket veto message). But he then proceeded to return the two bills to Congress — a return veto. The justification for doing so is always the same: to “leave no doubt that the bill is being vetoed.”

The problem is that this gambit creates doubt because it combines two mutually exclusive actions: a regular veto and a pocket veto. Even more troubling, the history behind this veto mashup — claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress — is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto that could be used whenever Congress is not in session, giving the president the very power the Founders sought to deny the office.

This practice traces to former President Gerald Ford’s administration, when the president issued five such dual vetoes. Then-Sen. Edward Kennedy challenged these vetoes in federal district court, where he prevailed. Ford halted the practice and agreed to use a pocket veto only at the end of a two-year session of Congress. Yet the practice was resuscitated by President George H.W. Bush, who claimed to pocket veto two bills that he also returned to Congress. President Bill Clinton did the same thing three times in 2000, and President George W. Bush employed the practice once in 2007. Obama, meanwhile, has used the maneuver five times out of seven total vetoes.

The Republicans’ option is clear: Sue the president, arguing that the vetoes were facially unconstitutional because they combined two mutually exclusive procedures, and because Congress had designated legal agents to receive veto messages. Since Obama withheld his signature, the two bills, instead of being vetoed, should have become law without his signature after ten days.

It would pain me to see Obama’s laudable efforts to reduce greenhouse gases thwarted*. But it is even more painful to see this constitutional Rube Goldberg veto device persist. Obama could and should have simply exercised the return veto, but he didn’t. It’s time to bring this practice to an end. Maybe it will take a legal victory by the president’s opponents to persuade him.

[kscarbel2]

* Storm pushes North Pole 50 degrees above normal to melting point

The Washington Pose / December 30, 2015

A powerful winter cyclone has driven the North Pole to the freezing point this week, 50 degrees above average for this time of year.

From Tuesday evening to Wednesday morning, a mind-boggling pressure drop was recorded in Iceland: 54 millibars in just 18 hours. This triples the criteria for “bomb” cyclogenesis, which meteorologists use to describe a rapidly intensifying mid-latitude storm. A “bomb” cyclone is defined as dropping one millibar per hour for 24 hours.

NOAA’s Ocean Prediction Center said the storm’s minimum pressure dropped to 928 millibars around 1 a.m. Eastern time, which likely places it in the top five strongest storms on record in this region.

As this storm churns north, it’s forcing warm air into the Arctic Circle. Over the North Sea, sustained winds from the south are blasting at 70 mph, and gusting to well above 100 mph, drawing heat from south to north.

Although there are no permanent weather stations at the North Pole (or really anywhere in the Arctic Ocean), we can use weather forecast models, which ingest data from satellites and surrounding surface observations, to estimate conditions at Earth’s most northern location.

On Wednesday morning, temperatures over a vast area around North Pole were somewhere between 30 and 35 degrees Fahrenheit, and for at least a brief moment, surpassed the 32-degree threshold at exactly 90 degrees North, according to data from the GFS forecast model.

Data from the International Arctic Buoy Programme confirms that temperatures very close to the North Pole surpassed the melting point on Wednesday. Buoy 64760 at a latitude of 87.45 degrees North hit a high temperature of 0.7 degrees Celsius — or 33 degrees Fahrenheit — around 8 a.m. Eastern Time.

“Consider the average winter temperature there is around 20 degrees below zero,” says meteorologist Jason Samenow. A temperature around the freezing mark signifies a departure from normal of over 50 degrees, and close to typical mid-summer temperatures in this region.

In other words, the area around the North Pole was about as warm as Chicago on Wednesday, and quite a few degrees warmer than much of the Midwest.