Thread by @ChadPergram

1) House Majority Leader Steny Hoyer (D-MD) indicates that the new, 117th Congress is likely to begin at noon on January 3 – even though it is a Sunday. The 20th Amendment to the Constitution mandates that Congress begin at that day and time.

2) But it offers the provision to change the start by passage of a law. Congress often moves the start date by a day or two, especially if January 3 falls on a weekend, as it does in 2021.

3) Here's the reason: It’s unclear as to whether Congress can approve such a law to move the date and earn a presidential signature – although Hoyer did leave open the possibility of beginning on January 4 or 5.

4) Moreover, Congressional Democrats want as tight a window as possible to end the current 116th Congress – and then begin the new Congress in January.

5) Before starting the new Congress, the current (old) Congress must adjourn “sine die” (pronounced sy-nee DIE). That’s Latin for Congress saying the current session ends “without a date to resume.” Congress could conceivably adjourn the 116th Congress in December.

6) But that presents a wide window for President Trump to prospectively make a recess appointment – potentially to the Courts. The Constitution requires Senate confirmation of executive and judicial branch appointees.

7) But Article II, Section 2 of the Constitution allows the president to fill open posts when Congress is out of session or “adjourned.” It’s colloquially called a “recess appointment.”

8) But frankly, it should be called an “adjournment appointment” because a Congressional “recess” is different from an “adjournment” on Capitol Hill.

9) If the House and Senate were “adjourned sine die” for the 117th Congress, there would be an opportunity for President Trump to short-circuit the confirmation process and make a “recess appointment.” Thus, Democrats want to block the President from that option.

10) That means Congress likely won’t adjourn “sine die” until 11:59:59 am et on January 3 – the last possible moment it can be in session.

11) This hermetically seals the window between the end of the 116th and the Constitutionally-mandated start of the 117th Congress: January 3 at noon et.

12) Moreover, there is another scenario on the table where Democrats and many Republicans are concerned: a possible veto of the annual defense policy. President Trump has threatened to veto the measure.

13) And, the House and Senate both APPEAR to have the votes to override the President on that issue (it requires at two-thirds vote of both bodies to override).

14) But, if Congress passes the defense bill too close to the end of the 116th Congress, it’s possible President Trump could conceivably use his “pocket veto” to dismiss the defense bill.

15) Pocket vetoes are extremely rare and require a unique set of parliamentary circumstances for the President to even have the option. But one could exist in these circumstances hurtling down the tracks.

16) A “regular” veto is just that. Congress passes a bill. Sends it to the White House. And the President, rather than signing the bill, vetoes it.

But the pocket veto option is available to the President if Congress sends him a bill close to the end of a Congressional session.

17) Article I, Section 7 of the Constitution allows the President to essentially “pocket veto a bill” if he gets it, and doesn’t return it to Congress (with his veto) “within ten days (Sundays excepted).”

18) President Trump is threatening to veto the annual defense policy bill. He initially issued the veto threat earlier this year because the legislation included language to change the names of bases named after Confederates.

19) The President has now added to his list of grievances the lack of a provision in the bill to repeal Section 230 of the 1996 Communications Decency Act. That provision inoculates tech firms from liability based on what is posted or said by others on their forums.

20) Language to repeal Section 230 was not in the defense bill & won't be added. Moreover, defense policy leaders on Capitol Hill say this is the inappropriate forum to include such a provision. And, the veto threatens the stability of the military.

21) The House and Senate approved the initial versions of the defense policy bill earlier this year with more than a two-thirds margin. That meets the standard to override a promised veto. President Trump has vetoed eight measures during his term and has never been overridden.

22) There have only been 111 successful veto overrides in presidential history.

But here’s the problem as it pertains to the end of the 116th Congress and the “pocket veto”:

Congress could pass the final version of the defense bill and send it to the President.

23) If lawmakers send the paperwork to the White House too close to the end of the 116th Congress (remember, the ten days, Sundays excluded business from Article I, Section 7 of the Constitution)....

24)...the President can sidestep the prospect of an override effort by simply holding onto the defense bill. He doesn’t have to sign it. He doesn’t have to veto it. He just holds it in his pocket (hence, the term) until the current session of Congress expires.

25) If Congress adjourns and there is no action by the President on the bill, he has effectively vetoed the measure. Congress has no recourse. The legislation dissolves into thin air. It must start with a new bill in the new Congress.

26) Thus, if House and Senate leaders REALLY want to avoid the possibility of a pocket veto, they need to pass the defense bill as soon as possible – and wait as long as possible to adjourn the 116th Congress.

27) Therefore, a later date of ending the present Congress (January 3) works in the favor of Congress stripping President Trump of the opportunity of a pocket veto for the defense bill.