Today's top 10 list: Dahlia Lithwick of Slate's The Bush administration's dumbest legal arguments of the year.
I make it about 387 days to go. Plenty of time for another bumper crop.
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by Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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We already have out first entry. The claim that Congress was not in session because the House was not in session. Wright v. United States (1938) already settled that one.
This is a political question however. Bush arguably satisfied the conditions for a veto. The fact that he is claiming it is not a veto but a pocket veto is beside the point, he objected to the bill and gave his reasons as the consitution demands.
But that suits Pelosi just fine. Unlike the blogosphere she is much more interested in putting the House Republicans on the spot. If they vote against the override they are voting against the troops. If the override succeeds the bill will be considered law regardless of what His Petulancy might claim.
I can’t see a court being keen to enter this dispute. If they are asked if Bush vetoed the bill I think they will say yes. If both Houses of Congress override the veto it seems pretty unlikely that they would overturn Wright when Congress had made its intent crystal clear.
What is Bush going to do, say that he is going to refuse to spend the money on his wars unless Congress agrees with his legal interpretation? The obvious retort in that situation would be to impeach the Solicitor General for incompetence instead, the one precedent that Bush must fear above all else is a finding that incompetence can be a high crime or misdemeanor.