Dubya is at it again, using the Constitution he swore to uphold as his personal plaything:

President Bush on Friday used a "pocket veto" to reject a sweeping defense bill because he dislikes a provision that would expose the Iraqi government to expensive lawsuits seeking damages from the Saddam Hussein era.

(…)

Bush’s decision… means the legislation will die at midnight Dec. 31. This tactic for killing a bill can be used only when Congress is not in session.

The House last week adjourned until Jan. 15; the Senate returns a week later but has been holding brief, often seconds-long pro forma sessions every two or three days to prevent Bush from making appointments that otherwise would need Senate approval.

(…)

A Democratic congressional aide pointed out that a pocket veto cannot be overridden by Congress and allows Bush to distance himself from the rejection of a major Pentagon bill in a time of war.

In other words, Bush is both keeping his fingerprints off of a veto of money for the troops, and rejecting the validity of the pro forma sessions the Democrats have been using to block recess appointments. Indeed, Kagro X suggests that opening the door for recess appointments may be the real reason for this move.

Not to worry, though. The Democrats are all over this, and are ready to deploy the strongest possible countermeasures – nothing is off the table:

Democratic aides said they have not ruled out any legislative options, including dropping the language on lawsuits against Iraq and sending the rest of the bill back to Bush.

Yes! Take that, George! If you refuse to yield, we’ll… give you everything you want! How do you like them apples??? (Actually, according to emptywheel, that lawsuit provision might be meaningless. More on that later.)

If Dubya once again resorts to his Reality-Is-What-I-Say-It-Is strategy, the Democrats can either cave or go to the courts, with Dubya shedding crocodile tears for the troops all the while: Boo hoo, the mean ol’ troop-hating Democrats are holding up the money instead of giving me a nice clean bill to sign. (Yes, I know the Democrats would actually be trying to release the money, but you know how these things go.)

It’s constitutional brinksmanship. Bush is gambling that the Democrats won’t want to contest this, and will give in just to make the argument go away. And as TeddySanFran suggests, if they do let the pocket veto assertion slide uncontested, then they have conceded that the pro forma sessions are meaningless, and Dubya is now free to make all the godawful recess appointments he wants.

This would also answer emptywheel’s Why Now? and Why This? questions. It must drive Dubya crazy that he can’t recess-appoint whoever he wants anymore, and he needs lots of strategically placed loyal Bushies to make his last year of duckiness less lame. And the choice of such an iffy provision as veto pretext makes it even more likely that the Democrats would elect to just strip it out rather than contest Dubya’s definition of adjournment.

Muddying the waters further, Scarecrow has pointed me to a couple of Annotated Constitution passages which suggest that while Senate pro forma sessions may be insufficient to prevent a pocket veto, they certainly should be sufficient to prevent recess appointments. In theory, this would make Bush’s strategy pretty pointless, but only if he considered himself bound by the Constitution.

(h/t dakine)