Update On The Signing Of The NDAA

Many people have been wondering what happened regarding the signing of the 2012 NDAA containing the critical, and much criticized, detention provisions. The House of Representatives passed the conference report of the bill on December 14th, with the Senate approving it by a 86 to 13 margin the following day, December 15th. Interest then turned to whether the President would veto it (he won’t) and when he will sign the legislation.

Most seemed to think that meant the bill must be signed by yesterday, which would have been the tenth day, excluding Sundays, after passage pursuant to Article I, Section 7 of the Constitution, which provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

But Obama has not yet signed the NDAA, so what gives? Presentment. A bill coming out of Congress must be formally presented to the President for signature. Sometimes, if the subject matter is deemed urgent, the presentment process is accelerated remarkably and happens on an emergency basis quite quickly. But, normally, it is a time honored deliberate process also governed by statute. 1 USC 106 and 107 require an enrolled bill passed by both chambers of Congress be printed on parchment or paper “of suitable quality” and “sent” to the President; this is the “presentment” process. 1 USC 106 does allow for alternate accelerated means for a bill emanating during the last six days of a session, and the OLC, in a little known opinion from May 2011, has decreed that electronic transmission is even acceptable (basically, the thing can be emailed).

In the case of the critical 2012 NDAA, however, Congress (one would assume with the blessing of the White House) apparently made no attempt to accelerate the schedule as often occurs for end of session matters, and the NDAA was not formally presented to President Obama until December 21st. So, excluding intervening Sundays, the tenth day is, in fact, Monday January 2, 2012.

Why, then, is the White House and President stringing out the signing of the NDAA? Well, we know AG Eric Holder has indicated Obama would be attaching a signing statement to the executed NDAA. Although unconfirmed officially, the word I am hearing from DOJ, who was working with the White House on the signing statement, was that they were done late last week.

So, it is not clear why Obama has still not yet signed the NDAA. Maybe he and the White House optics shop realized what a sour pill it would be to sign such a perceived toxic hit on civil liberties right before Christmas? The better question might be whether they are planning on slipping this little gem in the end of the week pre New Years trash dump.

20 replies
  1. Benjamin Franklin says:

    ‘Presentment’; aka, Politics.

    Not that there’s any comparison, save the political, but Lincoln didn’t publish the Emancipation Proclamation prior to his re-election, because the ‘moderates’ in the border states wouldn’t have liked it.

    Maybe in a hundred years we’ll see how great Obama was, as POTUS….maybe not.

  2. Gitcheegumee says:

    So, it is not clear why Obama has still not yet signed the NDAA. Maybe he and the White House optics shop realized what a sour pill it would be to sign such a perceived toxic hit on civil liberties right before Christmas? ……

    A very public sentiment of resentment against presentment?

    “In times of universal deception,telling the truth becomes a revolutionary act.”—–George Orwell

  3. Bob Schacht says:

    I assume the delay is because this time, Obama isn’t just going to rubber stamp the recommendations of his senior staff, but actually wants to review the major issues *himself*. Obviously, testing the political consequences will be part of that review.

    Bob in AZ

  4. Marilyn Gjerdrum says:

    It will come out in the Friday data dump. Between New Years and ongoing MSM obfuscation, they hope it will pass without much notice. Obama has already had congress insert a section making US citizens eligible for indefinite detention…..congress had made us exempt. Obama said he would veto it because it limited his powers. He said not one word defending civil rights, habeas corpus or the constitution. How anyone can still support this guy is beyond me, he has betrayed every voter who supported him. I guess he doesn’t care.

  5. PeasantParty says:

    Thanks for the update, Bmaz.

    I am wondering if there is a route around this ugly detention thing for citizens that are in the process of being insubordinate to laws removing rights and liberties. Do you know of anything?

  6. JohnLopresti says:

    I wonder how the draft bill senator Feinstein announced with language about due process might be faring. I keep sensing that the sort of innovation FISC represented before modern telecoms accelerated might be a construct sen. Feinstein’s measure could incorporate, architecting of which could be somewhat protracted by the usual New Year hiatus from lawmaking. Then again, there is the economic news which might be part of a counterbalancing gambit from the administration; namely, the way I understood the rarefied reportage in the local newspaper (which NYTimes currently is secretly selling to some east coast interests forthwith), that the low interest purchasers of new issue Spain debt settled for was something of a year’s end gift to Italy’s technocrat led government and Greece’s new leadership as well; plus other factors; all of which appear to have led Obama to attempt to avoid now what the neo-isolationists in the Republican party did over debt matters four months ago, at that time rocking both Greece and Italy governing parties. One article I saw today contended that if Obama can obtain the final installment of the debt extension now, a repeat of the August Republican nihilist economics will be circumvented during the entirety of 2012 thru the national elections timeframe. There’s too much in the news to square against these sorts of executive strategy blending projects; however, the straits of hormuz and Iran’s current seaborne wargames are described as already recognized beginnings of upward pressures upon 2012 petrol pricing structures Real Soon Now.

  7. pennalto says:

    Isn’t he just letting it go until it automatically becomes law? That way he can lie and claim he never signed it although he himself demanded some of the worst bits.

  8. Brandon says:

    A pocket veto is a legislative maneuver in United States federal lawmaking that allows the President to veto a bill indirectly.

    The U.S. Constitution limits the President’s period for decision on whether to sign or veto any legislation to ten days (not including Sundays) while the United States Congress is in session. If the President does nothing during this period while Congress remains in session, the unsigned bill becomes law. However, if Congress cuts short this period by adjourning and the President does not sign the bill, then the bill dies. This latter outcome is known as the “pocket veto.” Article 1, Section 7 of the U.S. Constitution states:

    If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its return, in which case it shall not be a Law.

    Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden (but see below). James Madison became the first president to use the pocket veto in 1812.[1]


  9. bmaz says:

    @Brandon: This is a subject that opens a whole different can of worms currently. Yes, traditionally the sessions of both chambers of Congress, whether inter-session or intra-session, end right before Christmas. However, in order to try to keep Obama from making recess appointments, the Republican controlled House gavels a pro-forma session into business for a few minutes every three days to try to keep the Senate from going into recess. I emphasize “try” because there is a real question as to whether this is truly a sufficient block on the Senate for these purposes, but the Obama White House has curiously accepted this as legitimately accomplishing the goal. So, the net effect for your question is that the WH clearly appears to be accepting that Congress is still “in-session”.

  10. What Constitution says:

    A Friday “news dump” signing would be just what they suspected…. But by delaying presentation to permit rolling the tenth day to January 2, Obama can coordinate burying the release with a fourth-and-one situation in the Rose Bowl. Who would notice then? That’s the ticket.

  11. Marilyn Gjerdrum says:

    @Bill Michtom: Me, too. It is unbelievable, he has shown himself bush 3. Some of his insistant supporters, regardless of his behavior call me names because I am disgusted with him & cannot vote for him again.
    I think Obama will sign this over New Years in the hopes that it will process through a Friday dump media explusion with little notice. MSM sure has avoided it; except for Current TV and Democracynow.org, and infinite unknown dot net, there is no update available. All the news channels and websites are full of the Iowa circus with the clowns pretending to run against Obama. We live in a one party system, yet many continue to deny it. I am amazed at the number of people who say Obama is our only choice, the others are worse. Thanks to Citizens United along with the rigged voting machines, our votes are a joke.

  12. Marilyn Gjerdrum says:

    @What Constitution: You could be right. Huffington Post and other sites won’t cover anything but the Iowa circus…a non story at best. Obama has received twice the funds from Wall street than all of them put together. They are straw men, the corporations support Obama, he is their man, not our’s.

  13. Say No to Corporate America says:

    Obama proposed preventative indefinite detention as part of his legal regime” back in 2009, Obama said:

    “In our Constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. So going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution”–

    Silly me; I used to believe a law was unconstitutional if it didn’t fit within our Constitutional system. Obama has taught me too much about the Rule of Law. He should sign NDAA as he’s ringing in the New Year… Out with the old Constitutional way and in with Obama’s New “legal regime” [which seems totalitarian to me]. Besides the obvious concerns of NDAA 2012, I have to wonder if he’ll use indefinite detention to prevent crime throughout America’s battlefield.

    I just read Obama’s signing statement for the “Consolidated Appropriations Act, 2012” and now I really wonder what’s in the one for NDAA 2012!

    The dead birds dropping from the sky New Years 2011 make an appropriate bookend with NDAA… the ominous beginning. It’s pretty wretched when the people who swore to “Preserve, Protect and Defend the Constitution of the United States” are destroying it. It is just pathetic when people waste valuable time arguing over clowns; who will be worse, Uniparty L or Uniparty R. People have got to start thinking differently; don’t accuse third party voters of ‘wasting their votes’ Accuse party voters of wasting their votes. GOP can’t decide who they like and I can’t imagine Obama has enough supporters left to take 4 more years (WE CAN”T AFFORD IT!) People are disgusted with Uniparty Incorporated so this truly is an excellent Third Party Time!

    “The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks.” ~ Samuel Adams

    Once again, it’s up to The People to defend Liberty. NDAA 2012 is a rude WAKE UP CALL America, ‘Your Allotted Amount of Freedom Has Expired


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